Applicant S v MIMA
[2003] HCATrans 421
[2003] HCATrans 421
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P52 of 2003
B e t w e e n -
APPLICANT S
Appellant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON THURSDAY, 23 OCTOBER 2003, AT 10.01 AM
(Continued from 22/10/03)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Howard.
MR HOWARD: May it please the Court, there are three matters that I would like to tidy up from yesterday afternoon before I move on this morning. In answer to your Honour Justice McHugh’s question about what would happen if there had been a member of the Ba’ath Party turn up in this country, perhaps fleeing the American regime, if it might be called that. I think I said to your Honour it was a nice question and I referred your Honour back to your observations about General Sherman’s sweeping through the South. I think I said that was in Applicant A – of course, it was in Ibrahim.
The point of more substance, though, that comes out of that is that as your Honour Justice McHugh said in Ibrahim, it would not necessarily be that the Convention protection would be available to somebody like that because of the terms of Article 1F of the Convention, which, of course, denies Convention protection to certain people if they have been guilty of international crimes – if I can summarise it that way. Your Honour dealt with that in passages in Ibrahim.
KIRBY J: That would not necessarily follow. I mean, there were huge numbers of people who are members of the Ba’ath party in Iraq, just as there were many Communists in the Soviet Union. It is unlikely that they were all guilty of international crimes. Those international crimes are quite restricted.
MR HOWARD: Yes, I would accept that, your Honour. It is simply that there might be another element to the question that was put to me in relation to a member of that party. I had started on the point of what would be the position if the Taliban was a non‑state actor, and I had taken your Honours to the passages in Ibrahim, particularly where your Honour Justice Gummow had left the question of the “accountability theory” for another time.
Just to round off those references, I had mentioned, I think, the judgment of your Honour the Chief Justice in Khawar at paragraphs 30 and 31, in which your Honour had said that:
Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct –
where there was persecution or not would be satisfied by the motivation of either the criminals or the state. Your Honour Justice Kirby made similar observations at paragraphs 120 to 122 of that same case. In the joint judgment of your Honours Justices McHugh and Gummow at paragraph 87, again, the question of whether the accountability theory ought to be accepted was left open.
KIRBY J: Could you explain to me how the majority in the Full Court distinguished Khawar? Because they had it before them.
MR HOWARD: They did.
KIRBY J: How did they distinguish the principles in the majority in Khawar?
MR HOWARD: They really did not deal with it to distinguish it, in the sense that their Honours in the majority, on finding that there was no evidence of how Afghani society regarded this particular social group, said, “Well, that is the end of the question.” So the majority in the Full Court accepted – as perhaps they had to, in light of Khawar – that there could be a particular social group of young, able‑bodied Afghani males ‑ ‑ ‑
GUMMOW J: If one goes to page 154, line 93:
In this case, however (unlike the position in Khawar), I can find no trace –
MR HOWARD: Yes.
GUMMOW J: That seems to be some basis for distinguishing it, which you say is a false basis?
MR HOWARD: Yes, we do. So it is distinguished on the facts, rather than as a matter of law.
CALLINAN J: Does Afghan society have to have the perception?
MR HOWARD: We would say, no, your Honour, but this Full Federal Court and certainly a number of others – it is most expressly done in the Zamora decision – requires it, because if it is not there, again, it is not obliged to consider ‑ ‑ ‑
CALLINAN J: I am sorry, you will have to make that clearer to me.
MR HOWARD: I am sorry, your Honour. This Full Court, in the passage that your Honour Justice Gummow has just referred me to ‑ ‑ ‑
KIRBY J: That is 93, at what paragraph or line?
MR HOWARD: It is appeal book 154, at line 93.
KIRBY J: I see.
MR HOWARD: The absence of that evidence was enough for this Full Court to say that the Tribunal did not need to consider if there was a particular social group.
GLEESON CJ: How does that stand with Dranichnikov? What was the evidence in Dranichnikov that Russians regarded – however you describe the people – as a particular social group?
MR HOWARD: We would say, your Honour, that that cannot stand with the approach of this Court in Dranichnikov.
KIRBY J: Why do you have to have recognition of the group? Is that on the theory that unless you have recognition, they are not a group?
MR HOWARD: We would accept that if there is evidence that a society perceives a particular social group as a cognizable group, that is relevant, and it may be determinative, for an Australian decision‑maker.
GUMMOW J: But not essential, you say?
MR HOWARD: Exactly, your Honour, not essential.
KIRBY J: Now, let us just test that. Is it not essential? Can one say that there is a well‑founded fear of persecution on the return, if society is indifferent to the group identity?
MR HOWARD: We would say, yes, your Honour, in the sense that it is not necessary in the sense – we have difficulties with how one measures a society’s perceptions, in any event. Putting those to one side ‑ ‑ ‑
KIRBY J: That may be so, but if you are talking about the well‑founded fear, subjective and objective, if you are indifferent to the group and you have no animus or feeling, one way or the other, towards them, then how can there be a well‑founded fear?
MR HOWARD: It may well be, your Honour, that that indifference, subjectively, if one likes, in the path of the society, nevertheless is enough to be persecution. I mean, your Honour Justice Kirby said, I think, in Chen Shi Hai that persecution could be banal, in the sense that a society ‑ ‑ ‑
KIRBY J: But that was to meet the point that you had to actually have hatred in your heart.
MR HOWARD: Yes.
KIRBY J: That is not necessarily present.
CALLINAN J: I suppose the answer to my question is that unless there is a perception within the country of a particular group of people as being a group, there cannot be any targeting and therefore they cannot be the object of persecution. You cannot hit a target unless you aim at it and unless you can identify it, so you do need a group identified within the country.
MR HOWARD: Your Honour, we would accept that what one needs is evidence that the targeting is for reasons of the membership of the particular social group. Now, whether that is satisfied if the persecutors ‑ the causal connection is satisfied because – I think his Honour Justice French, as it was accepted in Chen Shi Hai, said this at page 304, paragraph 34:
Motivation connecting persecution to the relevant attribute is sufficient.
So, yes, your Honour, one needs to be able to say that there is this connection, but ‑ ‑ ‑
CALLINAN J: It needs more than a connection. Surely, it needs to be persecution of an identifiable group, and the group has to be identified by the persecutors?
MR HOWARD: The persecutors have to be acting for reasons of the attributes that make that particular social group.
CALLINAN J: That is the next step, though.
MR HOWARD: But what was said here is that it was not even the persecutors. The Full Court stopped at the basis that there was no evidence of how Afghani society regarded this group – not how the Taliban regarded this group – it simply stopped at the basis, there was no evidence about Afghani society. We say the findings that the Tribunal made about the motivation of the Taliban show that the Taliban were targeting this group, because the motivation was to find men of conscriptable age, or fighting capacity, or however one defines it. So the Taliban were motivated to discriminate for reasons of the attributes that make the group, and we would say that was enough. What the Full Federal Court has done, in a number of cases, is to say that one needs evidence of the society’s perceptions. That puts a requirement into the Convention requirements that just is not there, in our submission.
Your Honours, I said yesterday afternoon that I did not intend to address any more argument to appeal ground 1 other than that which was in the written submissions, and in the course of the submissions I have dealt with appeal ground 2. What I would like to turn to now is something we have traversed in some detail, but it is essentially what is put against us by the respondent, that is, that this case is not about whether there was a particular social group or not, but it is really whether there was any persecution occurring.
Can I take your Honours to the Tribunal’s reasoning? We say there are three flaws in what the Tribunal said about persecution. The first one occurs at appeal book page 79, line 48 in about the middle of the page. The Tribunal says:
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.
We say that is wrong and is inconsistent with this Court’s reasoning in Chen Shi Hai. I will come to Chen Shi Hai in a moment.
The second error is one that I have already touched on, and appears at appeal book 98, at the top of the page, at about line 616. It is the equating of Taliban conscription with conscription in any other country. The Tribunal says:
The selection of young men or men of fighting age albeit in an “ad hoc” manner does not amount to discrimination and is not Convention related any more than regularised conscription is in other countries.
We say, with respect, that is wrong, as a matter of law. Lastly, is the finding, which appears in two places, but in that same passage – well, it is the sentence before:
This selective process which targets young, able bodied males does not amount to discrimination for a Convention reason.
The reason for that being that the Taliban’s motivation was solely based on whether the recruits were capable of fighting.
Now, we say that each of those is inconsistent with what this Court said in Chen Shi Hai, and if I can take your Honours to the relevant passages, paragraph 35 on page 305. The first error we say the Tribunal made is that there must be “motivation for the infliction of harm”. The majority judgment of four Justices is inconsistent with that, in the sense that it says that persecution:
may result from the highest of motives, including an intention to benefit those who are its victims.
Your Honour Justice Kirby said to similar effect in paragraph 63 at page 313. So the proposition that there must be a motivation to inflict harm on the persecuted, we say, is wrong, as a matter of law.
The next point is the equating of Taliban conscription with regularised conscription in other countries. That feeds into a lot of the debate and submissions I made yesterday afternoon about laws of general application and a legitimate object, and I took your Honours yesterday afternoon to the passages in your Honour Justice McHugh’s judgment in Applicant A. I did not refer to the adoption of those in Chen Shi Hai, and I will do that now. Paragraphs 28 and 29 at page 303, there is an adoption there of your Honour Justice McHugh’s observations in Applicant A. Particularly, at paragraph 29 – we say this is apposite to the Taliban conscription here, where the majority of four Justices say:
Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity.
That is similar in tone to your Honour Justice McHugh’s observations in Applicant A, that there may be regimes or governments that are so repressive that infringing their laws of general application may still amount to persecution, and, in that respect, your Honour Justice Callinan’s observations yesterday afternoon about the conscripting of children, perhaps, in Nazi Germany are also apposite. I think your Honour Justice Kirby in Chen Shi Hai referred to the fact that Nazi Germany had operated for a period of time as a state of law, with laws passed by an authority.
KIRBY J: I do not think the Germans recruited children until the very end of the war, when they were left to nothing else. I am not sure that they recruited them; they were just rounded up. It was not formal and not done by law.
MR HOWARD: Yes. The proposition I had sought to advance, your Honour, was the proposition your Honour put at page 317 in paragraph 72, to the effect that the mere fact that it is a law of general application does not answer the whole of the question – which is consistent with the observations made by your Honour Justice McHugh in Applicant A and also with what the majority said in Chen Shi Hai. Without wishing to repeat the submissions that were put perhaps at greater length yesterday afternoon, we say that there is no law of general application here and certainly no legitimate object is being advanced by the ad hoc, random conscription that was being engaged in by the Taliban.
CALLINAN J: Was there any evidence about the ways in which the conscripts were to be used? Were they to put down civil insurrection, or was there any evidence of that kind?
MR HOWARD: There was no specific evidence. I took your Honours yesterday to the findings of the Tribunal to the effect that there was an ongoing war for control of Afghanistan, and the Tribunal appears to have proceeded on the basis that that was what the recruits were to be used for.
CALLINAN J: Could you just remind me of that again, please?
MR HOWARD: At appeal book 95, at line 523, the Tribunal is talking about the appellant’s “fear of recruitment” being:
understandable when the situation in the ongoing battle for control of Afghanistan is considered –
One might draw the inference that the Tribunal proceeded on the basis that that was where the recruits were bound for. Then there was an observation in the Tribunal at appeal book 98, at line 641, which might be of less help, but was to the effect that the Taliban controlled “90 per cent of Afghanistan”.
CALLINAN J: What significance should be attached to the evidence that the areas have stabilised to the extent that the United Nations is prepared to facilitate return to them? Does that mean that people in those areas, people even being conscripted from those areas, are really not being persecuted? Otherwise, surely the United Nations would not be facilitating a return to those areas.
MR HOWARD: The finding in relation to this appellant, if one goes to appeal book 95, at line 30, point 3 on that page, the Tribunal found that he “had faced conscription” and “was at risk of facing it again”. That is irrespective of what had happened in terms of the stabilising of the area.
CALLINAN J: Where is the persecution? What is the persecution?
MR HOWARD: It is the concscripting that is the persecution.
CALLINAN J: Why is that persecution? If it is conscription in an area controlled by a group of people but by the Taliban, and the control of the Taliban and their activities are not such that the United Nations is not facilitating return to those areas, where is the persecution?
MR HOWARD: We would say, your Honour, that the persecution is that they are in an ad hoc, selective, random conscription program, and that the applicant ‑ ‑ ‑
CALLINAN J: What is different about having a ballot, as Australia did in the 1960s? That is random, too, is it not?
MR HOWARD: Except that it was a law of general application and it was, one imagines, designed to achieve a legitimate ‑ ‑ ‑
CALLINAN J: If your birthday came up, you would not think it was a law of general application.
MR HOWARD: No, but it did not distinguish between those who could afford to pay off the government and those who could not.
CALLINAN J: University students were allowed to defer.
MR HOWARD: I do not think it was on the basis that they could pay off the government, with respect. Also, we would say the distinction is that one would imagine it was a legitimate object of the Australian government to pass that law. The distinction here is, there is no law passed, and we would say it cannot be regarded by an Australian decision‑maker as a legitimate object, because the Tribunal finds the Taliban is despotic, does not work on ordinary principles of law, it is repressive, it is extremist ‑ ‑ ‑
CALLINAN J: But they would say the law is in the Koran, would they not?
MR HOWARD: I am not sure, your Honour, whether that would be the case. Presumably, somebody within the Taliban would have provided a justification for it, but that, of itself, does not answer the question. The Australian decision‑maker has to answer that question.
GLEESON CJ: You use the expression “ordinary principles of law”. In your submission, is Shariah law within ordinary principles of law?
MR HOWARD: I think, your Honour, if there is a body of rules that operates in a fixed way – it is difficult to find the words that will express it neatly – but if there is a recognisable body of law or rules that are applied generally, then, if it was not written down, one might nevertheless say it was a law of general application. But there were no such rules here, in our submission, and that is what the Tribunal found. In fact, the Tribunal did not even consider if there were laws of general application, as his Honour Justice Carr pointed out. The Tribunal just did not go there.
I might save most of this for reply, but we say that what is put against us by the respondent – apart from being a new case, and certainly one that was not advanced in the Full Court and was not decided by the Full Court – is that there are two elements to persecution, the respondent says, that are not met here. These appear at paragraphs 5.2 and 5.3 of my learned friend’s submissions. The first, the respondent says, is that:
“persecution” connotes an intention to cause harm to an individual because of an attribute which is distasteful to the persecutor.
The Tribunal proceeded in part along the same line in the passage I have already take your Honours to. We say that formulation is inconsistent with what the Court said in Chen Shi Hai, because persecution can arise when the intention is to benefit those who are being persecuted, if one can imagine easily situations where the persecutor would be saying to the persecuted, “You have never had it so good; this is going to be for your benefit”.
The second part to my learned friend’s formulation is that persecution connotes that the persecutor thinks there is something undesirable or repugnant, distasteful, about the person being persecuted. We say, again, in our written submissions in reply, that that is not within the scope of the Convention, because it is perfectly imaginable that persecution could take place because of an attribute which the persecutor finds attractive or desirable or useful, rather than repugnant and distasteful. We have dealt with that in our written submissions.
GUMMOW J: Whereabouts in your submissions?
MR HOWARD: The point I have just been making, your Honour, appears in paragraph 11 of our submissions in reply. We say that a group may be targeted and persecuted because they possess attributes which the persecutor finds attractive or desirable or useful.
GUMMOW J: It just strikes me that what is put against you in 5.2 and 5.3 of the Minister’s submissions that ‑ pretty significant submissions of general significance in construing the Convention definition. Is there no more authority on this? This seems to go to the heart of it.
MR HOWARD: My learned friend will say that the Court does not need to worry about whether he was a member of a particular social group because of the matters in 5.2 and 5.3 of his submissions.
GUMMOW J: Is there any authority on these matters in 5.2 and 5.3?
MR HOWARD: Only in this Court. What the nature of persecution is has been addressed in both Applicant A and Chen Shi Hai, and we have cited the relevant passages. We say that it is inconsistent with what my friend puts. Your Honour Justice Gummow in Applicant A had said something which might support the proposition that the motivation had to be for the infliction of harm, but your Honour Justice Gummow joined in the majority in Chen Shi Hai, where that proposition was not rejected but it was not part of the formulation in Chen Shi Hai.
GUMMOW J: It is this proposition in the second sentence in 5.2. Is there any authority on that?
MR HOWARD: That it is an “attribute which is distasteful”?
GUMMOW J: Yes.
MR HOWARD: Not as far as I am aware, your Honour. What we would say is that it is an attempt to introduce another gloss or requirement into the definition, where there is no warrant to do so. This Court has been very careful, with respect, to continually go back to the language of the Convention, rather than adopting theories or requirements which are not there.
GLEESON CJ: It is of fairly large importance, because there are many young men who do not want to go back to countries of particular origin because they will be called up for military service.
MR HOWARD: Yes.
GLEESON CJ: Perhaps, in most cases, under circumstances different from those that were prevailing in Afghanistan, but the possibility of being called up for military service and going into action is one that alarms a lot of young men and is a reason for not wanting to return to some highly civilised country.
MR HOWARD: Your Honour the Chief Justice will recall yesterday afternoon I took the Court to the relevant passages in the Israelian decision where the Court was content to deal with Mr Israelian, who did not want to go and serve in Armenia, on the basis that they were laws of a general application and he could not claim to be persecuted on that basis. That appears to be the orthodox position in this Court and we do not quibble with it. We do not need to.
KIRBY J: One gets an impression that the Armenian military forces would be a little less oppressive than the Taliban forces. One gets that impression from reading this Tribunal decision.
MR HOWARD: I think it was significant in Israelian that there was a law of general application and that did not seem to be challenged. That was enough for that issue to be dealt with by the Court.
GLEESON CJ: Does that cover the points you want to make in answer to Mr Basten?
MR HOWARD: Yes, it does, your Honour. May it please the Court.
GLEESON CJ: Thank you, Mr Howard. Yes, Mr Basten.
MR BASTEN: Your Honours, the manner in which the applicant has presented this case, as being like Khawar and Dranichnikov, is based on the proposition that there was some essential issue in the case which was not addressed by the Tribunal. The flaw in that approach, in our submission, is that it tends to dismember the definition of “refugee” in Article 1A(2) and then abstracts a particular element from its context and seeks to say that the Tribunal must deal with that element.
There was a reason in the present case why the Tribunal did not in terms need to deal with the question of a particular social group. It is perfectly appropriate for the Tribunal to focus in the first instance on the concept of persecution, because the concept of persecution is at the heart of what the applicant must establish a well‑founded fear of. Persecution constitutes two elements, in effect. One is conduct and the other is a level of motivation, and there is nothing in Chen Shi Hai which is contrary to that proposition. What happened in the present case may be illustrated if I might take your Honours to the judgment of the trial judge in the first instance ‑ ‑ ‑
McHUGH J: But your submission is doing exactly what you accuse the appellant of doing – you are dismembering the definition and concentrating on the term “persecution”. “Persecution” seems to me to have no meaning except as part of a compound conception which refers to the reasons for membership of the social group. Take an illustration the Court gave in Chen Shi Hai about terrorists. Until you define what the social group is, you may not know whether or not the treatment accorded to them is persecution or not. The two are inter‑related; you cannot divorce them.
MR BASTEN: I accept what your Honour says, as a matter of principle. The difficulty in this case is that my friend has to say that the approach that the Tribunal adopted was wrong in law. Now, one has to start somewhere. All I am saying is that if one starts at a particular point, one may get to an answer without having to address every conceivable issue along the way.
McHUGH J: I do not have difficulty with that. There may be cases where what is alleged to be persecution is such that it would not matter what the social group was, or what the reasons were, it just could not possibly be persecution, but this case seems to me to be somewhat removed from that. Your submissions, in 5.2 in particular, take a benign view of what actually happens. If you go to page 87 of the Tribunal’s reasons, this conscription “in an ad hoc way” consists of:
press‑ganging, house‑to‑house searches and seizing of children from secondary schools –
breaking into mosques – that is the conscription. Why does that not itself constitute persecution, on any view?
MR BASTEN: It certainly involves the infliction of serious harm, your Honour, but the Tribunal, despite what the trial judge said, never described that conduct as persecution. And in not doing so it appears to have wanted to treat the definition as a composite phrase, so that it sought to identify the motive or intent of the parties, the aggressors – the Taliban, in this case – to see if that sort of behaviour was inflicted because of a particular reason which fell within the terms of the Article.
McHUGH J: I have difficulty accepting your statement in paragraph 5.2 that there must be:
an intention to cause harm . . . because of an attribute which is distasteful to the persecutor.
That may cover many cases. Take the case of the Spanish Inquisition. People may have been tortured simply to get information. They may have been tortured to renounce what was regarded as a heresy. In that sense, it supports your definition. But there must be plenty of cases where people suffer serious harm, not because they possess some attribute which is distasteful to the persecutor, but because the persecutor seeks to do something. It may be just simply for sadism.
MR BASTEN: That may well be right, your Honour, but sadism does not fall within this Convention – may be the answer to ‑ ‑ ‑
McHUGH J: It may. Conduct may be motivated by sadism, but if it ‑ ‑ ‑
MR BASTEN: Yes, but it does not answer the question of whether it falls within the Convention or not.
McHUGH J: No.
MR BASTEN: When I use the term “motivation”, I mean to refer to the necessary link with the Convention ground. One needs to look at the persecutor’s purpose or intention, at least in an objective way, to identify that element of the definition. In terms of the – I am not sure whether this is really the point that your Honour is making, but I want to go, shortly, to the basis for putting the matter in that way. It comes back, in effect, to those cases where this concept of being “jointly condemned” is used. It is a phrase which comes from Ram’s Case, which was picked up by your Honour Justice Gummow in Applicant A at 284 to 285, and it has been applied in very similar terms by the House of Lords in Shah’s Case.
May I go back one stage and take your Honours to the way in which the issue arose, both for the Full Court and before the primary judge. At page 114 of the appeal book, at paragraphs 26 and then 29, what, in effect, the trial judge did was to say, at the top of the page:
In my view, the appropriate test is whether in this matter it could fairly be said that sufficient facts were placed before the Tribunal as to require it to consider whether there existed a particular social group, being able‑bodied Afghan men and whether the applicant, as a member of that particular social group, had a well‑founded fear of persecution if returned to Afghanistan.
That leaves out the causal link, but that does not matter for present purposes. Then, at paragraph 29, at about line 445, he says that the Tribunal had a duty:
to consider whether the facts threw up an arguable basis for the existence of any of the five Convention reasons.
None of that is controversial. We say the Tribunal did do that. Then, at page 118, at line 570, his conclusion is that:
the Tribunal should have considered whether able‑bodied young men ‑
in the circumstances he has set out –
comprised a particular social group within the meaning of Article 1A(2) –
and that the Tribunal erred in not having dealt with the matter in that way.
I want to come back in a moment to how the Tribunal did deal with it, but could I first take your Honours very briefly to Applicant Z (2001) 116 FCR 36. Applicants S and Z were two decisions of Justice Carr which were dealt with reasonably contemporaneously by his Honour, and the appeals came on one after the other in the order in which the trial judge dealt with the matter.
Applicant Z was the first appeal to be heard. If your Honours go to page 38, in paragraph 6, you will see that the issue identified by Justice Sackville in the Full Court is identified by reference to the passage in Applicant S at paragraph 26, to which I took your Honours. He then queries whether the test is correctly identified, but at paragraphs 8 to 10 on the following page his Honour looks at the material before the Tribunal and seeks to analyse it. At paragraph 8, he says:
Taken at its highest, the material before the Tribunal suggested that young men in some areas of Afghanistan were at risk of being caught up in the Taliban’s forcible recruitment drives.
Then he makes some further comments about that. He says, at the end of that paragraph:
More importantly, the information did not address the question of how able‑bodied males were perceived by Afghan society generally or (given the fragmented character of Afghan society) by particular sections –
Then at paragraph 10 – I will not take your Honours through the whole of it, but, in the last three lines on the page, his Honour says:
On one view, the reference to “able‑bodied” Afghan men, in the respondent’s formulation of the particular social group, is merely a euphemism for Afghan men at risk of forcible conscription by the Taliban. If the respondent’s definition of the group is to be seen in this way, it does not avoid the difficulties created by the decision in Applicant A.
Even if the particular social group identified by the respondent is taken not to incorporate a fear of persecution as part of the definition, there is nonetheless, in my view, an insuperable obstacle facing the respondent. There was simply no material before the Tribunal that would have justified it in finding that Afghan society, or some clearly identifiable section of it, perceived “able‑bodied Afghan men” as a distinct social unit.
Then, at paragraph 13, he says one looks for some form of:
institutionalised discrimination against able‑bodied Afghan men independently of forcible conscription –
in order to identify a particular social group. And Justice Keifel is to similar effect. That, in a sense, is how the issue came to be formulated in the way that it did and how it was dealt with in the same manner by the Full Court in the present case.
GLEESON CJ: Is part of the problem that it seems to have given rise to a lot of cases in the Federal Court about people not wanting to return to Afghanistan, that the Taliban would conscript anybody who was worth conscripting? The exercise then becomes trying to characterise people at risk of conscription, who, in truth, are anybody who would be thought worth conscripting, as “a particular social group”.
MR BASTEN: That is so, in our respectful submission. The Tribunal confronts that issue at various stages in its reasons and identifies it not in terms of identifying a particular social group, but says that that is what is being faced. He does not want to go back to Taliban, for the reasons that your Honour noted earlier – people do not want to go and fight, necessarily. He was liable to be conscripted or recruited or press‑ganged. It is a very vague description of people who might otherwise be identified as a particular social group.
The point really is, at the end of the day, that they are not a group otherwise than a group of people who are liable to be conscripted, and, in a sense, that is what Justice Sackville says. I think that was the point your Honour was making.
KIRBY J: What is the difference between that group and Dranichnikov?
MR BASTEN: There are a number of differences, your Honour, but in Dranichnikov the material demonstrated that there were people – if your Honours have a copy of Dranichnikov? I think it is in the Australian Law Journal Reports, your Honour. I was going to go to paragraph [15], which is in a passage in which ‑ ‑ ‑
GUMMOW J: It is (2003) 77 ALJR 1088.
MR BASTEN: Thank you, your Honour. At paragraph [15] in your Honours Justice Gummow and Justice Callinan’s joint judgment, there is some description of the factual circumstances:
The Tribunal also accepted Mr Dranichnikov’s evidence that there was an inability and unwillingness on the part of the security forces within Russia to deal with crime –
and police officers in Vladivostok had taken the steps set out there. Then there was a discussion about whether the group was identified as businessmen, or businessmen who had sought to oppose the criminal organisations.
KIRBY J: But this did not depend upon the perception of the Russian population of this particular group – or it was not so expressed.
MR BASTEN: No. There may have been an issue about whether, ultimately, there was such a group, but that was not a matter which this Court addressed. There was certainly material there. Perhaps I should go back a stage. The Tribunal thought it needed to look at whether there was a particular social group of which Mr Dranichnikov was a member, but it did so by looking only at businessmen, which was not the way he had put his case. This was a question about whether there had been an issue presented by him which had not been addressed by the Tribunal.
CALLINAN J: Mr Basten, it was also a fact in Dranichnikov that the authorities had actually targeted the group of which the applicant was a member. That appears from paragraph [30], page 1093, that:
the authorities may have facilitated criminal conduct by forcing him to withdraw his complaint.
They had actually gone beyond acquiescing – the authorities. There is perception, if you like – perception, perhaps not by all of society, but by the powerful of society.
MR BASTEN: Yes. I accept that, with respect. The issue, really, though, which may come out of your Honour Justice Kirby’s question, is whether or not this is a group created by the persecution fear, rather than whether it is an identifiable group. That is not the concern we have in the present case, because the question ultimately becomes, in this case, we say, and the way it was dealt with by the Tribunal, whether there is persecution at all of these people.
CALLINAN J: Mr Basten, the persecution in question in this case, if it exists, has to be and can only be the conscription, can it not?
MR BASTEN: That is so. That has not been put any other way.
CALLINAN J: And it could not be, in view of the finding that the United Nations were facilitating return to the area.
MR BASTEN: That is so, your Honour.
CALLINAN J: So there is nothing else. It is simply conscription, and I suppose the appellant would say it was conscription by a despotic regime.
MR BASTEN: Yes.
CALLINAN J: What do you say about that, the fact that it is a despotic regime?
MR BASTEN: We say it does not matter, and it does not matter whether it is even a regime. Can I come to that in just a moment? Just in answer to what your Honour raised with my friend about the UNs position on this, that ultimately becomes a critical element in the way the Tribunal deals with it at page 100. Between about lines 690 and 700, it expressly addresses that aspect of the matter.
The other point I was going to make was that the Tribunal identifies, at page 96, when it commences its discussion of the claims in regard to conscription, at line 575, that this was the issue, as your Honour has stated it, that the applicant presented to it for consideration, namely, his fear of being made to fight for the Taliban.
McHUGH J: But notwithstanding the statement at line 690, the Tribunal goes on to say:
I accept that he may face serious harm ‑ ‑ ‑
MR BASTEN: He does. That is so, but that does not mean ‑ ‑ ‑
McHUGH J: Mr Basten, why is there not an identifiable social group? One could well imagine a parent saying to a neighbour, “I’m getting out of Afghanistan. I’ve got an able‑bodied young son, and we’re off”, and the reason he would say that is because he fears recruitment, just the same as South Africans left South Africa because they had children approaching the age of 18 and they did not want them going and fighting in southwest Africa.
KIRBY J: They would say, “We fear, if we stay here, he is going to be rounded up by those fanatics and put on the front line”.
MR BASTEN: Yes. Some Americans said it in the 1960s and went to Canada. I mean, there is no doubt that, in a sense, people can identify that they are at risk of certain things happening to them which they do not want to happen.
McHUGH J: But the group exists independently of it. As I said in Applicant A, what happens can create a perception that a group is “a particular social group” and then when you add to that the methods ‑ press‑ganging, in effect, kidnapping – why then cannot one say there is persecution for reasons of membership of a particular social group?
KIRBY J: At least in America, they did not do that. In the Vietnam War, they did not have press‑gangs or kidnapping. They had a legal system and, no doubt, conscientious objection and so on. None of that was present in Afghanistan.
MR BASTEN: No. All these cases introduce slight differences which give rise to slightly different questions and the significance of the particular difference is an important issue. What we say, at the bottom line, I suppose, is that the way the Taliban treated these people was not to persecute them or treat them adversely because they were young, able‑bodied people. They wanted them to work for them because they valued what they had to offer.
Ignoring whether or not the Taliban are an element of the state or otherwise, that is not dissimilar to the facts in Zamora (1998) 85 FCR 458, which I might take your Honours to, if I may, in which a criminal gang sought to recruit the assistance of a tourist guide. The Full Court was asked to consider whether the Tribunal had come to a wrong conclusion as a result of the approach it adopted and held that it did not. If your Honours look at page 460F, it is clear that the Tribunal did not in that case decide whether Ms Zamora was a member of a social group, although it expressed some doubt as to whether certified tourist guides constituted a social group that was:
recognised in Ecuador. It went on, however, to consider whether Ms Zamora had been persecuted for reason of membership of any such group.
After a discussion setting out what had been discussed in Applicant A, at page 464B to C, the court identified the principles which it said were derived from Applicant A. My learned friend takes some objection to that, perhaps applying the Cassell v Broome error, identified in that case, to the Full Court, now, saying it is making a general statement. But, if your Honours then go to the bottom of page 466, the court said of the Tribunal:
Without expressly addressing the issue of the precise conduct said to be persecutory, the RRT did examine by Ms Zamora was targeted by a criminal element in Ecuador. It made the following findings:
“…the Applicant was targeted by a criminal element in Ecuador because they saw that she, as an individual, could be of assistance in helping them to steal from tourists . . . They weren’t motivated by a drive to persecute her because she was a member of a group of professional tourist workers . . . They were motivated because she could assist in their goals to obtain money by theft . . . Her membership of the group was of no interest to those doing the persecution in the absence of tourists.”
In a sense, your Honours, that is the same reasoning which we say the Tribunal applied in this case. These people, young, able‑bodied men, were a means to an end. They were not the object of the persecution and they qualities for which they were selected were not those which the Taliban sought to condemn or stamp out. Quite the contrary.
GLEESON CJ: It is not an easy problem. The Sabine women might have been victims of persecution, but they were wanted for their quality.
MR BASTEN: Yes, but they were treated adversely because of that, and they were treated adversely as members of a group who were identified perhaps ethnically and on the basis of gender. I do not mean to say that whether the aggressor receives some benefit, or is a sadist, or whatever, is a relevant consideration. What one asks is whether what is sought to be done is an attack on these individuals.
The Sabine women were not a means to some different end. They were persecuted for who they were and for whatever they were thought to represent to the aggressors. Again, one might ask what precisely that was. It may have been a means of indicating one’s superiority over the tribe from which they came. It probably was partly that, I think, but that sort of question perhaps does not necessarily arise in the present case.
KIRBY J: But if you look at Khawar, can it be said that the people in authority and males in Pakistan society were actually persecuting the women because they were women, or was that simply the consequence of the way their society was organised and the attitudes of men in that society? The case merges into another. On one view, you can say that these young men were persecuted because they were young men, able to be useful in fighting the war, able to be easily rounded up in press‑gang methods.
MR BASTEN: It was a precondition to their fate, as it were, that they have certain qualities. That does not mean that they were adversely treated because of those qualities. This comes back to the discussion in Shar’s Case about the need to avoid simplistic causal connections. There was a “but for” argument which might have applied in those circumstances, but it was not sufficient.
In relation to Khawar, your Honour, it seems clear from the case that what was needed in order for Ms Khawar to succeed was to establish that there was discrimination of an institutionalised kind on the part of the Pakistani government, which, as it were, singled out women, and then the persecution was the withdrawal of judicial protection. It was not even good enough that you could say that there were odd cases where the police declined to provide protection. It needed to reach that somewhat higher state of institutionalised discrimination, in order to be a matter which the Tribunal would have to consider.
GLEESON CJ: Yes, what was actually decided in Khawar was that the Tribunal erred, because the Tribunal said, “This could not possibly amount to persecution”, because the nasty things that were happening to this women were happening to her because her male relatives did not like her.
MR BASTEN: That is right, and what the Tribunal failed to consider was whether the act of the state in withdrawing protection might itself constitute ‑ ‑ ‑
GLEESON CJ: Yes, and that was all that was decided in Khawar. It was sent back to the Tribunal to have another look at it.
MR BASTEN: That is so, yes. In this case ‑ ‑ ‑
KIRBY J: Well, the state, at least at the time of the Taliban, was not going to give the applicant much protection.
MR BASTEN: I am not sure about that, your Honour, but the state is the Taliban. He may have disagreed with its activities, but that was an issue to which the Tribunal was alert, because it expressly asked itself the question, “Is he going to be treated more harshly because he is a political opponent or someone whom they might treat as such?”, because it had evidence before it that political opponents were sent to clear minefields by walking through them. So it was concerned to identify whether there was that kind of discrimination and it says it was satisfied that there was not, in this case.
KIRBY J: But that still left the social group category, separate from the political, racial categories.
MR BASTEN: Indeed, I accept that, your Honour, and I will come back to that. The reference to that is 97 at 595 through to 605.
McHUGH J: I think there is some force in what you say about the structure of the case, but the structure of the case, as it is presented to us – is it not the product of what happened in the Court of Appeal? The Tribunal seems almost to have assumed that there was a particular social group, but they knocked the case out on persecution. Now, Justice Carr, he did not look at it on terms of a particular social group, if I remember rightly. He looked at it in terms of an error in terms of persecution, and would have sent it back on that basis. It is only when it gets to the Court of Appeal, a Full Court, that this notion of particular social groups was injected into the case.
MR BASTEN: Your Honour, it may not be clear, but the reason I sought to take your Honour back to the manner in which it was dealt with by Justice Carr at 114, in paragraphs 26 and 29, and at paragraph 48, on page 118, was to support the view that it was Justice Carr who focused on that as the error, namely, that the Tribunal had been wrong in failing itself to address whether there was a particular social group in this case and it needed to do so. It could not, as it were, escape, because it said there was no persecution, on any view of it.
McHUGH J: Well, he said, in paragraph 48, page 118:
the Tribunal should have considered whether able‑bodied young men . . . comprised a particular social group –
but ultimately, in paragraph 54, he looked at it in terms of persecution. So he really did both things, I thought. He said, on page 121, line 668:
In my opinion, the Tribunal erred in law and committed jurisdictional error in characterising what the Taliban do to any able‑bodied male . . . as the enforcement of a law of general application.
KIRBY J: That is correct, is it not? I mean, so far as it goes, that was error on the part of the Tribunal.
MR BASTEN: I do not read the Tribunal as saying anything about a law of general application, except in the passage to which my friend refers, where they say, well, forced conscription, whether it is regular or irregular, does not constitute persecution itself. It does not, I think, adopt the phrase or say anything about “a law of general application”, and there is some significance in that, your Honours, because the concept of a law of general application can be relevant for two reasons. It can either demonstrate a form of discrimination, which can give rise to a particular social group, or it can demonstrate that something is not of itself persecution, as long as it is not selectively enforced and so on. So one would need to know, if the Tribunal had put it in that way, how it had done it. I am not aware that the Tribunal does deal with it in that way at any stage.
KIRBY J: Do you accept that, if the proper reading of the Tribunal’s decision is that they did deal with it on the footing that this was a case equivalent to a law of general application of conscription, that would amount to error?
MR BASTEN: No, because ‑ ‑ ‑
KIRBY J: It does not sound very lawful, the description of it.
MR BASTEN: No, that is why I was drawing the analogy with Zamora, where the criminal gang is not acting in a lawful way at all, but the immediate ‑ ‑ ‑
KIRBY J: This is the Taliban, who were then the government.
MR BASTEN: Yes, the de facto government, but that does not necessarily matter, in terms of the principle as to whether it is persecution or not. It may be important that I go to the passages in the Tribunal judgment for this purpose. I know your Honours have been taken through this material before, but could I take your Honours to page 96 again, where the Tribunal deals with what it sees as the relevant issue, namely, the fear of conscription. As I noted at 575 in that paragraph, it identifies that as the issue.
Then, over the page, and I do not want to read it to your Honours, but we say there is no problem with the principles which are extracted from Applicant A, further up that page. Then, over the page at page 97, at line 595 – perhaps a bit higher up – the Tribunal says:
I accept the information . . . to the effect that Taliban does not have a regular conscription policy but –
a press‑ganging practice –
I accept that, in some instances, Taliban has been reported to have forced youths of families it regards as being opposed to it to cross mine fields –
At 603:
I do not accept this is the case in the current matter –
And then, at the bottom of 97:
While the ad hoc practice of recruitment and press ganging new recruits including young students . . . is not one which would be condoned internationally, Taliban’s motivation is solely based on whether or not the recruits are capable of fighting. This selective process which targets young, able bodied males does not amount to discrimination for a Convention reason. The selection of young men or men of fighting age albeit in an “ad hoc” manner does not amount to discrimination and is not Convention related –
and then it says:
any more than regularised conscription is in other countries.
So it is the causal ‑ ‑ ‑
GUMMOW J: Where does this word “discrimination” come in?
MR BASTEN: Where does it get it from, your Honour?
GUMMOW J: Yes.
MR BASTEN: It brings it from the concept that people must – if you are looking for a particular social group, you are looking for a group which is identified by some form of discrimination, in the sense that it is treated differently and separately from other members of society. That, in a sense, is the converse of the point your Honour was making in Applicant A, that merely because people have in common a particular quality or attribute does not mean that they form a particular social group, let alone that they are treated adversely because of membership of it.
KIRBY J: It is a matter of reading the whole passage and it is true that some of the passages on 97 support your view, but then the conclusion on 98 does seem to be drawing an analogy to regularised conscription in other countries, which is a very poor analogy to the situation of the Taliban in Afghanistan. But you can say, well, they were alive to that distinction, because on 97 they drew it to notice, talked of the press gang methods and so on.
MR BASTEN: Yes, and if one goes down 98 to 640, that is the passage in which the Tribunal leaves it in no doubt that it understands what sort of a political entity the Taliban is, whilst acknowledging it is the de facto government. Over the page at 99, at about line 652, again the same point, that:
Taliban does not have, as a policy, a regularised military service or conscription programme but rather, takes young men at random –
All of this is very difficult to accord with the concept that there is a particular social group that is being mistreated because people are members of it. Then, at 658, and this is the passage ‑ ‑ ‑
KIRBY J: Unless you define the particular social group as young males susceptible to be taken at random, in a rather violent way, to serve on the front line of the Taliban’s military operations.
MR BASTEN: Yes. Then the question is whether they are persecuted because they are males who are liable to persecution. That is a problem we understand from Applicant A. There is no doubt ‑ ‑ ‑
KIRBY J: Why is it not persecution to be rounded up and put into a band of brigands and religious fanatics? Why is it not open to a Tribunal to conclude that that amounts to persecution? It would not be congenial company.
MR BASTEN: No, not to most of us. It may, if it uses the word in a colloquial sense, but it deliberately eschews that word here and merely talks about “serious harm” – which acknowledges the uncongeniality of it ‑ because it sees persecution as being something which, in this context, refers to conduct which must be attributable to membership of a particular group, whether they be religion, political opinion or particular social group.
KIRBY J: So the essential point is – and I think this is that point in Zamora – that it is being done for rational purposes of the Taliban, not because they hate young men.
MR BASTEN: That is right, yes. Your Honours, I will not go through it, but the passage from line 655 on page 99 over to 685 on page 100 is the passage from 107 to 108 which your Honour the Chief Justice picked up yesterday. We say that does, to a large extent, identify the reasoning of the Tribunal, but perhaps one needs to add that passage at 690 to 700 for the complete picture. I do not need to repeat the principle that I seek to derive from that.
Your Honours, we do say that it does not matter whether the Taliban is a de facto government or not, but the Tribunal held that it was. Your Honour Justice Gummow will tell me I am still lurking in my corner on the “accountability theory”, and I am. The reason for that is that the fact that there is a de facto government would not make the result any different, if one applied the accountability theory. May I provide the Court with part of an article, which the Court has actually had, in the matter of S217, in full.
KIRBY J: What does this go to?
MR BASTEN: Well, I thought the Court yesterday thought it might be significant as to whether or not the Taliban was the state, and whether or not one would therefore need to treat this as a body which, if not the state, might not invoke the protection of the Convention. The German jurisprudence in this regard is set out, if your Honours go to the page numbering at the bottom, at page 9, to the end of the article. The only point I wanted to make in relation to the discussion at pages 9 to 10 – perhaps at page 10, point 4 – is that there has been a change in the German approach, so that a de facto authority has been treated as a body having “state‑like powers”, as a result of which the Convention can operate to allow protection to be provided even in Germany.
If your Honours see footnote 40, perhaps that highlights the criterion which the German Federal Constitutional Court has now applied, namely, a body which has sufficient effective control to be in a position to provide protection may also be a body which can persecute, and therefore constitutes a de facto state, for the purposes of the German approach to this issue.
KIRBY J: Did the cases go up to the Bundesgerichtshof?
MR BASTEN: Yes.
KIRBY J: Because in this note they appear to say, in paragraph 2, that it was still to go to the Verwaltungsgerichtshof.
MR BASTEN: Your Honour is at the beginning ‑ ‑ ‑
KIRBY J: Did we not learn, in that other case, that there is a diversity of jurisprudence in other European countries and that the Germans were, in a sense, on their own on this? I do not remember it very clearly.
MR BASTEN: In S217?
KIRBY J: Yes.
MR BASTEN: Yes, and, indeed, it is a development which postdates the discussion in Adan, which was picked up in, I think, Ibrahim, particularly. That is why I sought to take your Honours to it, both before and here. There is a reference to the fact that there is now a division of opinion between the countries which were once thought to be in the German camp ‑ I am sorry, I cannot quickly pick up the reference, but the Swiss were one such country, I recall – but there has been a change in the view adopted within the German courts.
KIRBY J: In essence, it comes down to: if there is a de facto control in the country, that is taken to be equivalent to a government.
MR BASTEN: Yes, that is so.
KIRBY J: That seems a sensible approach, given that there are many countries, as we have learned, Somalia being one, that are chaotic.
MR BASTEN: Well, it may still be the case that we take a broader approach, because in an anarchic situation like Somalia, discussed in Ibrahim, the Court was happy to accede to the proposition that the Convention could apply. I am not sure that, even under the current German approach, that would hold good.
The other reference I sought to make was to the concept of those who stand “jointly condemned”, which, in a sense, is the authority, at least in part, for the propositions at 5.2 and 5.3 in the written submissions. I do not know whether your Honours still have Zamora, but the extract from Zamora at page 463 sets out what your Honour Justice Gummow said in Applicant A, from C through to E, picking up the language from Justice Burchett in Ram’s Case, namely, that for a particular social group:
“‘There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is “for reasons of” his membership of that group.’”
A similar approach has been accepted in England. I am sorry, I did not put this on the list, but might I hand up copies of Shah’s Case [1999] 2 AC 629 to your Honours. Your Honours have been to Shah at various stages for different purposes. I just wanted to refer your Honours to two passages in the opinion of Lord Millett, who was, in fact, in dissent, because he took a different view of the evidence in the case. The two passages – firstly, at page 662, F to G, where his Lordship notes the analysis:
The applicant must also establish that he or she is liable to persecution because he or she is a member of the group. The applicant must be the subject of attack, not for himself or herself
alone, but because he or she is one of those jointly condemned in the eyes of their persecutors for possession of the characteristic which is common to the group.
Picking up the language from your Honour Justice Gummow and Justice Burchett, and then, at 665B, the same view is expressed. In that regard, as a matter of principle, there is no departure from what was said by their Lordships who formed part of the majority. Otherwise the matters are set out in our written submissions, if the Court pleases.
GLEESON CJ: Thank you, Mr Basten. Yes, Mr Howard.
MR HOWARD: Your Honours I wish only to reply on one matter, which is the last point that my learned friend raised. To take from that phrase “condemned in the eyes of their persecutors” and to draw from it what my learned friend does, in paragraphs 5.2 and 5.3 of his written submissions, is to risk, in my submission, creating another statute out of an observation of the court. My friend fastens on the word “condemned” to say that that must mean that the persecution ‑ ‑ ‑
KIRBY J: But you have to show that it is by reason of.
MR HOWARD: Yes.
KIRBY J: It is not enough that there is horrible conduct out there in this world, or even that there is horrible conduct directed to an identifiable group. It has to be persecution by reason of.
MR HOWARD: We accept that, your Honour.
KIRBY J: Now, the thesis that is put to us is that it is horrible to round up young males of able body and to do it in the violent way and for these fanatical people, but that that was for the purpose of having soldiers for their war. It was not because they hated young men of able body. It therefore is not by reason of. Once again, it comes to the third level, and we are focusing on a different point. At one point, this case is about the social group, another, it is about persecution, and here I understood Mr Basten to be putting his emphasis on whether it is because they are young, able‑bodied men that they are persecuted. Now, what is your answer to that?
MR HOWARD: Your Honour, the Tribunal found that the appellant faced serious harm. So if one accepts for the moment that that serious harm may be persecution, the question is then whether it is a serious harm he faces for reason of being in that social group, and, in our submission, what his Honour Justice French said in Applicant A, as adopted by the majority in
Chen Shi Hai, answers the question. That is, the motivation connected the persecution to the relevant attribute, and that was sufficient.
That is what we say to that, that what my friend really seeks to do is to put another gloss and introduce another requirement. Chen Shi Hai says it does not need to be enmity, it does not need to be any element of bad intention, as it were, and we think the proposition, with respect, is dealt with by that approach adopted by this Court already in Chen Shi Hai. May it please the Court.
GLEESON CJ: Yes, thank you, Mr Howard. We will reserve our decision in this matter and we will adjourn for a short time to reconstitute for the next case.
AT 11.24 AM THE MATTER WAS ADJOURNED
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