Applicant S v MIMA
[2003] HCATrans 419
[2003] HCATrans 419
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 WEDNESDAY, 22 OCTOBER 2003, AT 3.10 PM
Copyright in the High Court of Australia
MR M.D. HOWARD: May it please the Court, I appear for the appellant. (instructed by Minter Ellison)
MR J. BASTEN, QC: May it please the Court, I appear with MR P.R. MACLIVER for the respondent. (instructed by Australian Government Solicitor)
GLEESON CJ: Yes, Mr Howard.
MR HOWARD: Your Honours, in this case, the Refugee Review Tribunal did not expressly consider whether the appellant was a member of a particular social group. His Honour at first instance, Justice Carr, held that on the material that was available to the Tribunal, the Tribunal ought to have considered whether the appellant was a member of a particular social group.
GLEESON CJ: Is it right to say that the essence of the reasoning of the Tribunal on this point is repeated at page 107, commencing at paragraph 58, through to 108, paragraph 67?
MR HOWARD: I beg your pardon, your Honour. Starting at page 107?
GLEESON CJ: Page 107, paragraph 58, through to 108, paragraph 67. That is the reasoning of the Tribunal on this point, is it not?
MR HOWARD: Your Honour, I have been working off the Tribunal’s reasons itself, but what the Tribunal found was that ‑ ‑ ‑
GUMMOW J: What paragraphs of the Tribunal have you been working off?
GLEESON CJ: That is just a quotation from the Tribunal.
MR HOWARD: It is a recitation.
GLEESON CJ: Yes.
MR HOWARD: Yes, in full, your Honour; it is just that the paragraph numbers were added by his Honour Justice Carr. What the Tribunal found was that the applicant would face serious harm. The Tribunal accepted that the Taliban had attempted to recruit the appellant and that the Taliban’s motivation was based on whether the recruits were capable of fighting or not.
GLEESON CJ: Yes, that is paragraph 63, taking Justice Carr’s number on page 6, that they attempted to recruit him for the same reason as Sir Edmund Hilary attempted to climb Mt Everest, because he was there.
MR HOWARD: Yes, I think that the Tribunal said:
that there are no criteria for selection save being able bodied and, in the wrong place and in the wrong time.
and that appears at appeal book 99, but the Tribunal found that the motivation was such that he was not being persecuted; that it was not discriminatory treatment within the meaning of the Convention. The Tribunal did not consider whether he was a member of a particular social group or not. In our submission – and certainly the way the matter proceeded before his Honour Justice Carr and before the Full Federal Court ‑ that was the question that was decided by the courts below.
In this Court in Chen Shi Hai, the majority held that while one had to bear in mind that it was a composite phrase and that each element interacted with the other elements, nevertheless it was convenient to regard whether there was a particular social group as a discrete question. The Full Federal Court in the two Sarrazola decisions, one of which is on our list, which is at (1999) 95 FCR 517. There is a second Sarrazola decision that I do not need to take your Honours to, but which I will give you the reference to is [2001] FCA 263, which is, I think, at 107 FCR 184.
The point of those references, your Honours, is that in those cases the Full Federal Court has taken the view that before one can consider whether the persecution is for reasons of membership of a particular social group, the Tribunal must address what is the particular social group. That is how the matter has gone in the courts below.
GLEESON CJ: It seemed to go on the Tribunal, as distinct from the courts below, on the question of whether there was persecution.
MR HOWARD: Well, the Tribunal certainly, your Honour, is not perhaps 100 per cent clear on that matter. We would accept that certainly the Tribunal did seem to cover that issue and, to that extent, we would accept that, your Honour.
GLEESON CJ: Rightly or wrongly, the Tribunal seemed to say, it does not amount to persecution to be made the target of what might be called a random recruitment drive.
MR HOWARD: Yes. Your Honour, what the Tribunal stopped at was the motivation of the Taliban and it said, the motivation of the Taliban is based on whether the person is capable of fighting. That is the way the Tribunal put it in summary. But we would say that the conscription – and, really, this goes to address the substance of what the respondent puts against us – could, and did, constitute persecution, within the meaning of the Convention. But that is not the way the matter proceeded in the courts below, with respect to the submissions that are put against us.
The way it was proceeded with below was that his Honour Justice Carr said the Tribunal ought to have considered whether there was a particular social group. The Full Federal Court said, no, the Tribunal did not have to, because, in effect, the third requirement from Zamora was missing; that third requirement being that there needed to be, in the Full Federal Court’s opinion, evidence of how Afghani society perceived a particular social group. So one sees in the Full Federal Court the majority saying, there is no evidence of how Afghani society perceived the particular social group; that is the end of the story. The matter did not have to go any further in the Tribunal.
We say two things about that, and they are captured, really, in our two appeal grounds. We say, firstly, if there is a third requirement, as per Zamora, it was satisfied, and that is our appeal ground 1. We say, though, there is no third requirement as laid down by Zamora, and the Full Federal Court, with respect, erred in saying that it was determinative that there was not evidence of how Afghani society perceived the particular social group. What is put against us is, “Do not worry about whether there was a particular social group of not. Conscription in this case could never be persecution”, and so one does not need to trouble with what we would say is the anterior question of whether there was a particular social group or not.
Perhaps it is convenient, your Honours, if I can address the appeal grounds this way. Our written submissions, between paragraphs 13 and 15, set out what the findings of the Tribunal were, what the facts were, and they are uncontested, as I understand the respondent’s submissions. We say that there is enough there that if the Zamora third requirement is truly a requirement, that it was satisfied in this case. That is really a question of fact. The Full Federal Court was right to, in effect, apply the Zamora third requirement.
Perhaps I can deal with the facts that were before the Tribunal only in summary form. I do not wish to read what is already in paragraphs 13 to 15 of our submissions, but it was accepted by the Tribunal that the Taliban had tried to recruit or conscript this appellant, that this appellant had fled in order to avoid conscription or recruitment. The Tribunal also – and this will become relevant to the question of persecution – found the Taliban to be a ruthless, despotic, political body, which was founded on extremist religious tenets; also, that it was a strict and rigid group, which had taken extreme actions in controlling people and that it did not operate on normal rules of law.
GLEESON CJ: Fairly common ground.
MR HOWARD: One would hope, your Honour, that that is common ground. That is what the Tribunal found, and I understand there is not a contest to that. Then the Tribunal found the Taliban practised ad hoc, random, forced recruitment, and the Tribunal also said that the ad hoc practice of recruitment and press‑ganging new recruits is not one which would be condoned internationally. Also crucially, the Tribunal found that the appellant may face serious harm as a consequence of being recruited.
So they were the findings against which the Tribunal found that the Taliban’s motivation in trying to recruit this appellant was solely based on whether he was capable of fighting or not, and that takes me back, I think, as I said to your Honour the Chief Justice, the Tribunal said:
that there are no criteria for selection save being able bodied and, being in the wrong place at the wrong time.
KIRBY J: Would you just pause there just for one moment and answer a question that has puzzled me in a number of these cases. We are looking at the lawfulness of the decision of the Tribunal and therefore on the material that was before the Tribunal at the time, but, if you were to succeed, the best you could hope for would be the setting aside of that decision of the Tribunal and an order that it would be reheard. Everyone in this courtroom knows it would be reheard with the knowledge of country information relevant to the changed situation in Afghanistan, concerning the fall of the Taliban. So there is a slight element of unreality about what we are doing, but I suppose that is all we can do – look at the record as at the date and at least your client gets another bite at the cherry, but it all seems a little unreal, and this is not an isolated case, there are many such cases.
MR HOWARD: With respect, your Honour, I would agree with those propositions, save to say that ‑ ‑ ‑
KIRBY J: I have answered my own question, I suppose, but I imagine I am just having a tiny little protest about being involved in a slightly ethereal and unreal activity.
MR HOWARD: There is a real consequence, though, for this appellant, your Honour Justice Kirby, in this sense. Yes, he must go back to the Tribunal if this appeal succeeds; the country information, though, which he will be able to rely on before the Tribunal, will be updated country information and ‑ ‑ ‑
KIRBY J: He may still have some other basis of complaining about the treatment of his people in Afghanistan at the moment.
MR HOWARD: Yes. Your Honour will have noticed that this appellant comes from the south of the country and, even on the most wildly optimistic of international reports, the south of the country, we are told, is still a very difficult place to be. It may well be that the country information ‑ ‑ ‑
KIRBY J: Yes, I see. All right, well, I have my answer.
MR HOWARD: I do not seek to give evidence from the Bar table, except to say this, your Honour, that the facts that he would be able to rely on before the Tribunal may well make a significant difference to his application.
KIRBY J: I see, all right. But it would be a very different case to the case that he was running about the Taliban.
MR HOWARD: Yes it would be, your Honour.
KIRBY J: Yes, thank you.
MR HOWARD: There is an air, perhaps, of unreality about this. Perhaps, your Honours, if I can – we have touched on these in the written submissions, but perhaps if I could take your Honours to the passage in his Honour Justice Carr’s judgment, which is the central findings at appeal book 118, paragraphs 48 and 49, towards the bottom of the page. These are the crucial findings by his Honour. At paragraph 48, his Honour finds that:
the Tribunal should have considered whether able‑bodied young men‑
and there is a variation which his Honour puts –
comprised a particular social group –
and in paragraph 49:
By not doing so, in my opinion, the Tribunal erred in law –
We say there is nothing wrong with that approach when one looks at what this Court said in Chen Shi Hai and what the Full Federal Court has said in the two Sarrazola decisions. That is, it is difficult, if not impossible, to consider whether the persecution is for reasons of the particular social group unless one identifies what the particular social group is.
The way the Full Federal Court dealt with it is best demonstrated by looking at her Honour’s reasons, Justice Stone, which I can take your Honours to at page 153 in the appeal book, paragraph 70, towards the bottom of that page:
The issue to be decided there is whether the facts before the Tribunal in this case could justify it in reaching the conclusion . . . that able‑bodied men in Afghanistan . . . comprise a particular social group within the meaning of the Convention.
Then, over the page, appeal book 154, in paragraph 73, a few lines up from the bottom, her Honour says:
I can find no trace of any evidence before the Tribunal that would support a claim that Afghan society perceived young able‑bodied men as comprising a separate group either as a result of the Taliban’s recruitment process or for any other reason.
So that was the issue. His Honour Justice Whitlam concurred with the reasons of her Honour Justice Stone and said that he decided in like manner.
That was the issue that was decided; that is, although this Full Court, the Full Court below, did not refer to the Zamora test, it decided the matter consistently with the Zamora decision, that is, one needed evidence that Afghani society perceived there to be a particular social group in the way contended for.
Now, our appeal ground 1, as I said, your Honours, is to the effect that if that is the requirement, it was met. I rely on my written submissions for that. In relation to appeal ground 2, what we say is that that is not a correct interpretation of the Convention. The more a third requirement – in fact, the three requirements set out in Zamora, as your Honours will know, come from the decision of your Honour Justice McHugh in Applicant A and, in our written submissions, we have described what has occurred at the Full Federal Court level as the elevation of observations by your Honour Justice McHugh to being a requirement.
It is perhaps an example of where judges’ observations become interpreted or read almost as though they were a statute of themselves, rather than being read in their full context. The passage in Applicant A (1997) 190 CLR 225 is at page 264. About half‑way down the page, your Honour Justice McHugh refers to the now very famous hypothetical group of left‑handed men who, if persecuted:
would no doubt quickly become recognisable in their society as a particular social group. Their persecution for being left‑handed would create a public perception that they were a particular social group.
Skipping down, your Honour Justice McHugh says:
The fact that the actions of the persecutors can serve to identify or even create “a particular social group” emphasises the point that the existence of such a group depends in most, perhaps all, cases on external perceptions of the group. The notion of persecution for reasons of membership of a particular social group implies that the group must be identifiable as a social unit.
Now, what follows after ‑ ‑ ‑
McHUGH J: What I should have said is, if the group is “perceived or perceivable” by people in the relevant country as a particular social group ‑ that probably would have been more accurate. But it seems to me it is an illustration of what Lord Reid said in Broome v Cassell, that judgments should not be read as if they were statutes. Much of what is said in judgment is by way of emphasis and illustration and is not intended to be definitive.
MR HOWARD: With respect, your Honour, we would – I am not sure if it is in our keep to accept what your Honour says about what your Honour meant, but certainly the ‑ ‑ ‑
McHUGH J: It is not what I meant. What I wrote is what I meant. But it strikes me as a little strange to take an “if” sentence, a hypothetical sentence, as definitive and exhaustive. It might be closer to being exhaustive, if it said, if the group is “perceived or perceivable” by people, because there may well be groups which would constitute social groups who are not perceived by people, but who would be perceivable if you knew about it.
MR HOWARD: Your Honour, we would accept that, with respect. Also, the only development on that would be that the group must be perceived or perceivable by an Australian decision‑maker, in the sense that, when all of this is boiled down, the question is for the Australian decision‑maker – in this case, the Tribunal. And evidence of the particular society’s perceptions ‑ your Honours will have seen, in our written submissions, we throw up some difficulties about that phrase – that evidence is relevant to the Australian decision‑maker making the decision, but it is only one piece of evidence, as well as any other number of pieces of evidence. That is where we say, with respect, the Full Court fell into error and where, with respect, the third requirement in Zamora is also wrong, if it is understood that without evidence of how society perceives that group one cannot ‑ ‑ ‑
McHUGH J: Well, Queen Victoria and, no doubt, many like her denied the existence of lesbians, but they existed in English society.
MR HOWARD: Yes.
McHUGH J: Even if most people of her generation did not accept that they existed.
MR HOWARD: We would accept that as being a difficulty with the elevation of – or with the adoption of the third requirement in Zamora, yes, your Honour.
KIRBY J: You might also say Muslims in a particular society, where you do not know who is a Muslim and who is not, or Christians, or Jews.
MR HOWARD: Yes.
KIRBY J: Maybe that is why the Nazis wanted them to wear yellow stars, so that they could be absolutely sure.
MR HOWARD: We would accept that, and I think your Honour Justice Gummow used the example, on the special leave application, of the Soviet Union for a long time denying, I think, that there were Protestants within its confines. It is the same situation, with respect.
McHUGH J: Many politicians and others, for instance, denied there was such a thing as corrupt policemen.
MR HOWARD: Yes, your Honour. My learned friend, in his submissions, I think, approaches the Zamora third requirement subtly in that he seeks, as I understand it, to say that the third requirement in the Zamora test is to be understood only as the persecutors must have the particular social group set aside. Now, at one level that is unobjectionable, in the sense that it will be true in almost all cases in that, for there to be persecution, there must be motivation linked to the particular attribute for it to be “for reasons of”.
Again, it is problematic if one requires, as it were, hard evidence that the Taliban regarded young able‑bodied men as being a particular social group. As your Honour the Chief Justice put to me, it was far more random and ad hoc than that, and, in our submission, it is only when one looks at it from some distance, perhaps, that one can perceive that there was a particular social group.
GLEESON CJ: What did the evidence show? That it was only young able‑bodied men who the Taliban tried to treat as cannon fodder? What about middle‑aged men, like myself?
MR HOWARD: One would hope that the Taliban would have thought of a better use of such a resource, your Honour. The Tribunal found, at the references – I do not know, your Honour, if it is most convenient to do it this way. At paragraph 14 of our written submissions there is an attempt to summarise the findings, and at (a), (b), (c), (d), and (e) of paragraph 14 there are the particular references to the Tribunal’s decision. The Tribunal did not exclusively use the word “young”, but it did use it in different formulations at different places in its reasons. I do not know if your Honours would find it helpful if I ‑ ‑ ‑
GLEESON CJ: Pressing people into military service, if I may say so, is not exclusively a tradition in Afghanistan.
MR HOWARD: No.
GLEESON CJ: We come from such a tradition ourselves. Whilst, no doubt, young able‑bodied men would be regarded as the most attractive recruits because they could fight better, it would not necessarily be limited to them, would it?
MR HOWARD: No, your Honour, it might not be, and it may well be that the perceivable social group is Afghani men of a fighting age, or something of that nature.
GLEESON CJ: And, as the war keeps getting worse and worse, Afghani men left standing.
MR HOWARD: As we know, your Honour, in different parts of the world, recruiters do not stop at men, they start with children.
KIRBY J: We had a case concerning the complaint by somebody – I think it was in relation to Georgia, or one of the former Soviet Republics – where he complained that he was a refugee because he wanted to escape conscription. Do you remember that case?
MR HOWARD: Israelian, your Honour ‑ ‑ ‑
KIRBY J: Israelian, yes.
MR HOWARD: ‑ ‑ ‑ which was decided with Yusuf.
KIRBY J: Now, in that case, as I remember it, the Court held that he was not entitled to refugee status. Was that on the social group basis, or on another basis?
MR HOWARD: Your Honours, it is not on either of our lists, but I can hand up a copy for each of your Honours, if that would be helpful.
KIRBY J: I just want to know how you distinguish it. As I remember it, there was a fabric of lawful government in Georgia or that country ‑ ‑ ‑
MR HOWARD: It was Armenia, your Honour.
KIRBY J: Armenia. Whereas in the Taliban regime it seemed pretty lawless, from the descriptions.
MR HOWARD: Yes. Your Honour, perhaps I can quickly take your Honours to the relevant passages. In the joint judgment of your Honours McHugh, Gummow and Hayne, paragraph 97 on page 354 ‑ as a side point, your Honours may have noticed that when this matter started before his Honour Justice Carr there was a claim of a breach of the requirements of section 430 of the Migration Act. The first time we appeared in front of his Honour Justice Carr was just before or just after this decision was handed down and then this decision killed off that ground.
GUMMOW J: If I could just stop you for a minute. This is a case we have today under the old 475 and 476, is it not?
MR HOWARD: Yes, your Honour. In the joint judgment at paragraph 97, page 354, in the second sentence at the foot of the page:
It concluded that there would not be persecution of Mr Israelian if he returned to his country of nationality, only the possible application of a law of general application. The Tribunal is not shown to have made an error of law in that respect.
Your Honour the Chief Justice agreed with that reasoning, and her Honour Justice Gaudron was to similar effect at paragraphs 54 and 55 on page 342. So that was a case where it appears that the matter proceeded on the basis that there was a law of general application, and, as your Honour the Chief Justice has put to me, we in this country have on occasion resorted to conscription.
GLEESON CJ: But our forebears resorting to pressing people into naval services.
MR HOWARD: That is true.
GLEESON CJ: What I was seeking to explore – and maybe the evidence does not disclose this – was whether or not the only targets of Taliban pressure for conscription were, in truth, able‑bodied young men, or whether they might have included all men who looked as though they were capable of fighting.
MR HOWARD: Your Honour the Chief Justice, the Tribunal is limited, in the sense that ‑ ‑ ‑
GLEESON CJ: Men or boys, I might add.
MR HOWARD: Yes. The passages that we cite in paragraph 14 are to the effect that there were findings about young men. There was not a negative finding, as it were, that they were the only targets. We have not cited it, but your Honours may recall that the Tribunal accepted that this appellant’s brother had not been conscripted because he was not able‑bodied, as a result of an earlier attack by the Taliban on the village. So even though his brother was older and otherwise, one might have thought, available or suitable, he was not able‑bodied and he had not been recruited.
GLEESON CJ: Well, they would not try and recruit anybody who would be a burden to them, presumably, but, subject to that qualification, as far as the evidence goes, did they try and recruit anybody who might be of assistance to them?
MR HOWARD: Your Honour, there is no direct finding to that effect. The findings of the Tribunal are that many young men, many men of fighting age and thought to be capable, were recruited.
CALLINAN J: They left his father alone. His father was still alive, was he not, in the village?
MR HOWARD: He was, your Honour. His father was old, but there was no evidence as to whether ‑ ‑ ‑
CALLINAN J: He was only 20 when he arrived – the appellant.
MR HOWARD: Yes, he was, your Honour.
CALLINAN J: Was there evidence about his father’s age?
MR HOWARD: No, there was not, your Honour, except that the appellant described his father as being elderly, in answer to the question of why the Taliban had not killed him. Apart from that there was no evidence about his father’s age. What I cannot tell your Honour and which I will tell you in reply, if I might, is whether, in the bio data at the beginning of the interview process, it has revealed his father’s age.
CALLINAN J: Well, his father was in prison with him at one stage, was he not, or detained by the Taliban?
MR HOWARD: He was, your Honour.
CALLINAN J: And tortured, according to him.
MR HOWARD: Yes. The Tribunal said, on that part, that they did not accept that this appellant had a raised profile with the Taliban because his father had not been killed, and if his father had been thought to be really in opposition the Tribunal thought that a regime like this would have killed him. My learned friend has handed me a note with a reference to appeal book 35. It looks as though his father was born in 1945, at the top.
GLEESON CJ: That means he was not old.
MR HOWARD: I suppose the – yes, your Honour.
GLEESON CJ: I do not want to take you off your line of argument if there is nothing further in the evidence that throws any light on this policy of the Taliban, as it were. That is about as far as we can take it.
MR HOWARD: Yes. There are clear findings about the recruitment of many young men and many men of fighting age. What distinguishes this case, though, from the Israelian decision is that there was, in our submission, no law of general application. The Taliban, it was accepted, did not operate on normal rules of law. It operated in an ad hoc random fashion. What underpins, it seems, lawful conscription, if I can call it that, is what your Honour Justice McHugh in Applicant A spoke about as being a legitimate object. If there is a law of general application which has a legitimate object, then that will not ordinarily constitute persecution.
CALLINAN J: Mr Howard, why can you not rely, for example, upon paragraphs [32] and [33] of Khawar (2002) 187 ALR 574 at page 582, in the reasons of the Chief Justice? If it is open to conclude that “women in Pakistan are a particular social group” and that they are within the power of somebody, then why is not this man, a man of conscriptable age within the power of the Taliban, capable of being a member of a class?
MR HOWARD: We would accept that, your Honour, yes.
CALLINAN J: It just seemed to me that in Khawar the possibilities of a class were such that it could be extremely large.
MR HOWARD: Yes. We would accept that, your Honour, and that, of course, was consistent with what was said by their Honours Justices Dawson and McHugh in Applicant A, to the effect that the size of the group could be small or it could be extremely large; that did not determine it. So we would accept that, with respect, your Honour.
CALLINAN J: I would have thought that was your best point, but I am probably wrong. What about the other members of the court who were in the majority? What did they say in Khawar in relation to the class? Because it certainly seems, at first sight, with what the Chief Justice said, the criteria that the Chief Justice mentioned are capable of being satisfied here.
MR HOWARD: Your Honour, what we have done in the outline of submissions is, paragraph 49, we have set out the different formulations which the court postulated in Khawar. Of course, our submission is that his Honour Justice Carr was right that there was enough material there for the Tribunal to be obliged to consider whether there was a particular social group. It was not necessary for a judge on review to formulate the particular social group.
CALLINAN J: No, but obviously it is necessary for you, as a practical matter, to point to the possibility and also to contend for one or more classes or groups.
MR HOWARD: Yes, your Honour. With respect, we would accept that the evidence would have led to a group such as your Honour put to me, men of conscriptable age.
CALLINAN J: Men of conscriptable age in the power, as a practical matter, of the Taliban, and – I suppose, in this case, you could narrow it down further – without the financial capacity to buy them off.
MR HOWARD: Your Honour, that was certainly one way it was put to his Honour Justice Carr. As we have set out in paragraph 49, there is always a number of formulations that one might rely on and, certainly, your Honour, we would not step away from ‑ ‑ ‑
CALLINAN J: Or young conscriptable men, or young conscriptable men in a village effectively controlled by the Taliban.
MR HOWARD: We would accept all of those, your Honour, as being open on the facts in this case.
CALLINAN J: Young conscriptable men who had already been victimised by the Taliban. Was he not detained for 20 days?
MR HOWARD: He was, although the Tribunal did not find there was any ‑ ‑ ‑
CALLINAN J: There was no finding about that?
MR HOWARD: There was no particular link between that and the later conscription attempts.
GLEESON CJ: I would have thought your strongest case is Dranichnikov, troublemakers.
MR HOWARD: The only difficulty in relying on Dranichnikov, for this appellant, is that, of course, in Dranichnikov the particular social group which this Court ultimately held ought to have been considered was put, in the judgment one reads, to the Tribunal, whereas this appellant put all of the material facts without contending for the particular social group which his Honour Justice Carr found was open and which we have formulated in the submissions which we accepted today. That is a distinction, perhaps, with the Dranichnikov Case.
If I can just finish distinguishing Israelian perhaps. I was saying that your Honour Justice McHugh in Applicant A talked about laws of general application and at pages 258 and 259 – and this also seemed to inform the decision in Israelian – about two-thirds of the way down the page, your Honour Justice McHugh says:
Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution ‑ ‑ ‑
GLEESON CJ: Now, how do you relate that? As I understand the argument put against you, the real issue in this case is whether there was persecution. How do you relate that to a situation where you have a country that has a de facto government – and, by the way, please correct me if what I am saying is wrong about the facts of Afghanistan – the de facto government is waging war against external and internal forces and, in order to assist them to wage war, they conscript males. How, if at all, does that relate to what Justice McHugh is talking about?
MR HOWARD: It does in this way, your Honour, and perhaps, in partial answer to that, if one goes over the page to page 259, in the second full paragraph, his Honour Justice McHugh says:
In cases concerned with political opinion and the membership of particular social groups, the issue of persecution may often be difficult to resolve when the sanctions arise from the proper application of enacted laws.
We pause to say, well, there are no “enacted laws” here. His Honour Justice Carr said there was no finding in the Tribunal that there were laws of general application in force, and, with respect, that is correct.
GUMMOW J: Where did he say that?
MR HOWARD: He said it in two places, your Honour.
McHUGH J: Right at the end of his judgment.
MR HOWARD: At appeal book 116, paragraph 38, about line 490, his Honour said:
There is no reference anywhere in the Tribunal’s reasoning to there being a law of general application in Afghanistan requiring military service.
And then again, at page 121, paragraph 54:
The proposition that forcible conscription by the Taliban forces could be reasonably considered as a legitimate object of Afghanistan, as the refugee’s country, and thus fall within the “law of general application” exception is not one which fits the facts as found by the Tribunal in this matter.
GLEESON CJ: How would you relate that to a society in which Shariah law prevailed and there was a holy war being waged against external and internal enemies?
MR HOWARD: Your Honour, there are two ways of perhaps looking at Afghanistan. One is that the Taliban was not “the state”, in the sense that it may have been a de facto government over the majority of the country, but it was not the state as such. It had no legitimacy. Now, if one takes that approach, the Taliban become non‑state actors and ‑ ‑ ‑
KIRBY J: They were not doing this under the National Service Act of the Parliament of Afghanistan.
CALLINAN J: I do not know whether you have to narrow it down as much as that, anyway. Hitler was conscripting 12 year‑old children in June and July 1945, and he was probably doing that – I do not know, but he was probably doing that under some Nazi law duly enacted. One would be inclined to think that those children were being persecuted.
MR HOWARD: Your Honour, with respect, we would accept that. His Honour Justice McHugh deals with it, to some degree, in Applicant A, again, on page 259, because, in the discussion about there being a legitimate object, your Honour says:
government cannot be expected to tolerate political opinion or conduct that calls for their violent overthrow.
But then, about halfway in the page:
Nevertheless, even in these cases, punishment of the holders of the opinions may amount to persecution. It will certainly do so when the government in question is so repressive that, by the standards of the civilised world, it has so little legitimacy that its overthrow even by violent means is justified.
Now, that passage is going to the holding of political opinions, but it comes in a discussion on those two pages about the difficulties with a particular social group, as well as those holding a political opinion. So either, in our submission, the Taliban are non‑state actors, persecuting, or they are the state persecuting, but there is no law of general application. It is applied in an ad hoc, random way, which is ‑ ‑ ‑
GLEESON CJ: We had better get that straight. I mean, it might not matter to you which of those alternatives applies, but we might have to make up our minds on that and I have to tell you that, as I sit here, I do not know. At the relevant time, what was the position of the Taliban and its governmental power in Afghanistan?
MR HOWARD: It is dealt with in two places, your Honour. Can I take your Honours to appeal book 95 ‑ ‑ ‑
KIRBY J: Which page?
MR HOWARD: Appeal book 95, your Honour, the Tribunal finding at about line 523, that there was an:
ongoing battle for control of Afghanistan –
At appeal book 98, line 641, the Tribunal says:
It is, nevertheless, the body which controls 90 percent of Afghanistan and, though not internationally recognised by many states, is the current de facto government of Afghanistan.
GLEESON CJ: That is what I am after, thank you.
MR HOWARD: Yes. Then it is dealt with by his Honour Justice Carr, who said that the Taliban controlled “by force of arms” at appeal book 121, line 665. His Honour also deals with the fact that it was only three states that had recognised the Taliban as being ‑ ‑ ‑
GUMMOW J: Where is that?
MR HOWARD: It is at appeal book 121, line 667. Now, that mirrored a finding in the Tribunal which was, it was not recognised by many states. What his Honour Justice Carr did was put a number to the “not many”, which was three.
GLEESON CJ: Thank you.
KIRBY J: That seems a pretty strong and, on the face of it, pretty convincing conclusion that what the Taliban do is not characterised as the licit enforcement of a law of general application. Is that an error of law that was open to Justice Carr to find?
MR HOWARD: We say it was, your Honour, because the error one can see – and even if this case ends up being about what my learned friend says it is about, one can see that at appeal book 98, line 616, the Tribunal says, in effect, that the Taliban conscripting is the same as any other government conscripting.
GLEESON CJ: Are we now in the area – we had a case about this recently – of non‑state agents’ persecution, or are we to regard the Taliban as the state of Afghanistan, for the purpose of this argument? Which is it?
MR HOWARD: Your Honour, we say it does not matter ‑ ‑ ‑
GLEESON CJ: You say it does not matter ‑ ‑ ‑
MR HOWARD: ‑ ‑ ‑ in the sense that, for the appellant’s purposes, if the Taliban is the state, then it is as your Honour the Chief Justice called the “paradigm” case of persecution in Khawar, that is, the state persecuting the individual. If the Taliban is not the government and is a non‑state actor, it nevertheless is persecution within the meaning of the Convention, in our submission.
GUMMOW J: When you say, it is a non‑state actor, what is the state?
MR HOWARD: On that scenario, there is no effective state.
GLEESON CJ: That is the problem that arose in these cases about Somalia – a breakdown of government.
MR HOWARD: It is, your Honour, and it was raised in the Ibrahim decision, which I do not think is on either of our lists, but, again, I can hand up copies.
GLEESON CJ: Well, that raises a very awkward issue of persecution, does it not, if you simply have a country in which there is no effective government?
MR HOWARD: Perhaps I will just give the reference to the Ibrahim decision, your Honour. It is (2000) 204 CLR 1. The matter was dealt with most extensively by your Honour Justice McHugh, who was in dissent. Your Honour Justice Gummow wrote the leading judgment, with whom your Honour the Chief Justice and Justice Hayne agreed, and your Honours will recall that one of the issues in Ibrahim was what has been called the “theory of accountability” which has been applied in an English decision in Adan.
The position, we say your Honour, is that if the Taliban is not the state – it is dealt with by your Honour Justice McHugh at page 22, paragraphs 68 and 69. Again, this is an issue of the justification of the action. Your Honour, we would say, if the Taliban is not the government, deals appositely with it this way, that, about the third sentence:
Whatever legitimacy the actions of the various groups in Somalia may have, it is not grounded in the authority of a government.
Then, more importantly perhaps, the proposition your Honour the Chief Justice put to me, at paragraph 69:
Because Somalia has had no government in any relevant sense, persons such as the applicant have had no protection from their country of nationality.
And then, at the foot of the page:
that persecution will fall within the definition of refugee just as it would if an existing government had failed to protect that person from persecution.
Now, the way your Honour Justice Gummow dealt with it appears at paragraphs 152 through to 155 ‑ ‑ ‑
GUMMOW J: What is so helpful for you?
MR HOWARD: Not unhelpful to us, with respect, your Honour, in the sense at pages 53 to 55, because your Honour summarised the arguments and, at page 54, towards the foot of the page, set out a quote from the decision in Adan and added emphasis to that quotation, the second part being what had come to be called “the protection theory”. Your Honour said:
It is not, with respect, immediately apparent that the theories of “protection” or “accountability” are necessarily in opposition.
But then, at the top of page 55, your Honour Justice Gummow said:
Given the stand taken by the appellant in the present case ‑ ‑ ‑
GUMMOW J: Well, Mr Basten would not come out and fight. He stayed in his tent, really, in that case, on that question.
MR HOWARD: That question, then, is also dealt with by two of your Honours in the Khawar decision. It arises in this way in the judgments of your Honour the Chief Justice and your Honour Justice Kirby, because your Honour the Chief Justice was concerned about what happens where there are non‑state actors and a failure to protect. At paragraph 31 of your Honour the Chief Justice’s judgment, perhaps where it is most neatly summarised, your Honour the Chief Justice said:
Where persecution consists of two elements, the criminal conduct of private citizens ‑ ‑ ‑
which would be non‑state actors –
and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.
So if the Taliban are non‑state actors, persecuting for reasons of the particular social group, the absence of there being a state is not fatal. in our submission, to the appellant.
GUMMOW J: It seems to me that they were a state, but they had a legal system which, according to their lights, was divinely ordained – not the first regime to think that – and their legal system so divinely ordained is one we find repulsive and illegitimate, et cetera, et cetera. There is some evaluation by us of the legal systems of other countries involved in the construction of this Convention, which proceeds from, one might say, 19th century Eurocentric views of what states are and what legal systems are.
MR HOWARD: There was no evidence, your Honour, in the Tribunal ‑ ‑ ‑
GUMMOW J: It is not exactly politically correct to say that, but that is what the people thought when they brought in this dimension. They thought the Bolsheviks and the Nazis were beyond the pale, for those reasons.
McHUGH J: Supposing a few weeks ago a member of the Ba’ath party had arrived in this country, claiming refugee status on the ground he had fled from the United States government now in Iraq. Is that a legitimate government of Iraq? Did it have United Nations sanction at that time?
MR HOWARD: They are difficult issues, your Honour. They are not dissimilar to the issue your Honour posed hypothetically in Applicant A, of General Sherman swinging through the South. It is a nice question, but we do not have a member of the Ba’ath party fleeing from the United States before us.
CALLINAN J: Anyway, you do not have to worry about Ibrahim, I do not think, for myself; it is an entirely different set of facts. I summarised at paragraph 222 what the Tribunal’s findings were – page 79 of the report. I do not think they are remotely like the facts here.
MR HOWARD: No, I mentioned it only ‑ ‑ ‑
McHUGH J: You see, the big distinction, if you can rely on an issue of persecution, is the arbitrariness of the law. It is not a law of general application that says people over 18 are eligible for military service, become conscripts and go and fight in Vietnam, and a gang arrives and says, “You pay money, or off you go”, or they just take you, and off you go.
MR HOWARD: Yes, your Honour; we accept that as being the fundamental distinction and, as his Honour Justice Carr pointed out, there was no evidence about there being a law of general application.
GUMMOW J: Does it matter that they think they are doing this because they were fighting a holy war under one of the major religions of the world, as they understand its tenets?
MR HOWARD: With respect, no, your Honour, in the sense that the motivation, as your Honours noted in Chen Shi Hai, might be for the good of the victim and, if one believes some religions, to die in a battle like this puts one in the very first rung of a fabulous afterlife.
CALLINAN J: Early access to heavenly delights of various kinds.
MR HOWARD: It does, and ‑ ‑ ‑
GLEESON CJ: As I say, we do not need to strike an attitude of moral superiority about this – without suggesting the answer is yes or no, were people who were pressed into service with the British Navy victims of persecution?
KIRBY J: But they did not have the Refugees Convention then.
GLEESON CJ: So what is the answer to the question? Were people who were pressed into service by the British Navy victims of persecution?
MR HOWARD: I think the answer to that question would be, as his Honour Justice McHugh formulated in Applicant A, was it a law which was for a legitimate object, and, if it was ‑ ‑ ‑
GUMMOW J: It is expanding British imperial power.
KIRBY J: It was bringing civilisation to the world.
CALLINAN J: But that was not done as a matter of general application, anyway. I mean, they swept the seaside taverns ‑ ‑ ‑
McHUGH J: Yes, exactly.
GLEESON CJ: It was random and arbitrary, like this case.
MR HOWARD: My grandfather told me that was why tankards had a glass bottom, so that one could see whether there was a coin at the bottom of it.
GLEESON CJ: Pressing people into military service is not peculiar to the Taliban.
MR HOWARD: No, your Honour.
KIRBY J: But it was one of the reasons that caused the American Revolution. People do not tend to like it. People tend to think it is very arbitrary, unjust and an affront to their dignity as human beings.
MR HOWARD: Yes. The findings here were that it was ad hoc, random, selective, and, in fact, the Tribunal’s finding was that the only criterion ‑ maybe it is criteria – was being of fighting age in the wrong place at the wrong time, and that is not, in our respectful submission, a law of general application. Could not be.
GLEESON CJ: Now, Mr Howard, how long do you think you will require to complete your submissions?
MR HOWARD: Your Honour, we have something to say about what my learned friend says about persecution and about what my friend says the appeal is really about. I am in the Court’s hands. I am happy to deal ‑ ‑ ‑
GLEESON CJ: The reason I am asking you the question is not to hurry you up, but there are people in other cases and I want to give an indication as to when their cases are likely to be heard.
MR HOWARD: Your Honour, doing the best I can, I would have thought maybe another half an hour, no more than.
GLEESON CJ: Then we will adjourn now. We will resume this case at 10 o’clock tomorrow morning. How long do you think you will require, Mr Basten?
MR BASTEN: About 45 minutes, your Honour.
GLEESON CJ: We will say that the next case, Pinkstone, will be not before 11, and later this afternoon I will give an indication of when we might start the special leave applications. So we will adjourn until 10 o’clock tomorrow morning.
AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 23 OCTOBER 2003
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