MIAC v SZJGV & Anor; MIAC v SZJXO & Anor

[2008] HCATrans 404

[2008] HCATrans 404

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S330 of 2008

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZJGV

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Office of the Registry
  Sydney  No S331 of 2008

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZJXO

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Applications for special leave to appeal

FRENCH CJ
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 DECEMBER 2008, AT 9.32 AM

Copyright in the High Court of Australia

__________________

MR R.T. BEECH‑JONES, SC:   If the Court pleases, I appear with my learned friend, MR D.H. GODWIN, for the applicant in both matters.  (instructed by DLA Phillips Fox)

MR G.T. JOHNSON:   May it please your Honours, I appear for the first respondent in each of those matters.  (instructed by the first respondent)

FRENCH CJ:   Yes, Mr Beech‑Jones.

MR BEECH-JONES:   Thank you, your Honour. 

GUMMOW J:   Now, before you get into it too far, we granted special leave this morning in matter No 3 which Mr Williams had handily put in his written submissions, including a provision of costs.  Is there such a provision in your written submissions as to the Minister’s attitude to costs?

MR BEECH-JONES:   No, your Honour, but we listened with open ears and I can say this, that if your Honours were otherwise minded to grant special leave on the basis of some condition, that I have instructions that we would agree to pay the respondent’s reasonable costs as taxed or agreed of the application in the appeal and not to seek to disturb the costs orders below.

KIRBY J:   Was there a costs order in favour of the respondent in the Federal Court?

MR BEECH-JONES:   I believe there was, your Honours.  There was.

KIRBY J:   Yes.

MR BEECH-JONES:   Page 36 I think is the orders, your Honour.

GUMMOW J:   What is the page, 36?

MR BEECH-JONES:   Yes, your Honour, page 36 is the – no, your Honour, that is the wrong order.

KIRBY J:   You would not be wanting to disturb that either, I assume.

MR BEECH-JONES:   No, I have misled your Honour, that is not the order.  It is page 78.

GUMMOW J:   Page 78?

MR BEECH-JONES:   Yes.  The corresponding orders for each appeal is 76 and 77.

FRENCH CJ:   What is your position with respect to those?

MR BEECH-JONES:   I am instructed that if your Honours are minded to grant special leave, we would not seek to disturb those costs orders.

FRENCH CJ:   Yes.  We will hear from Mr Johnson first as to why special leave should not be granted.

MR JOHNSON:   Yes, thank you, your Honours.  The applicant in this case does not seek to challenge what the Full Court said in paragraph 22 of its judgment.  The Full Court there accepted:

the Minister’s submission that s 91R(3) can only, sensibly, be applied once primary findings of fact have been made.

Let us just flag a question mark as to what “primary findings of fact” might mean.  That might be a slightly loose expression.  But then they go on and they say –

If, for example, an applicant claims to have engaged in conduct in Australia which causes him or her to fear persecution if returned to his or her country of origin, the Tribunal must decide whether or not that conduct has occurred.  If it has not occurred then there will be nothing to disregard –

that is, nothing to disregard for the purposes of section 91R(3) –

nor will the occasion arise to determine whether or not paragraph (b) may have application.  If it has occurred then consideration must be given to the requirements of s 91R(3).  We do not understand the appellants to contend otherwise.  Their submissions do, however, overreach when they assert that, if an applicant seeks to rely on his or her conduct in Australia and the Tribunal accepts that such conduct has occurred, the conduct cannot be taken into account “at all” in deciding the application.  As the Minister points out, the lodging of an application for a protection visa in which particular claims are made is a relevant matter which is properly to be brought into account.

I might say, your Honour, that is a line that we would not contest either.  Then they say –

Once, however, the adjudication process has commenced and primary facts have been found which include conduct engaged in by the applicant in Australia, then s 91R(3) is engaged.

and this is the critical part –

Once engaged, s 91R(3) precludes the decision maker from having regard to “any conduct” engaged in by the applicant in Australia unless the decision maker is satisfied that the conduct was engaged in for purposes other than strengthening the applicant’s claim to be a refugee.

Now, here what we have is a situation where, as the Full Court explained, the Tribunal, in deciding the application and in deciding whether or not the applicants for protection visas had a well‑founded fear of being persecuted for a Convention reason, did in fact take into account certain conduct that they had engaged in in Australia and it took that ‑ ‑ ‑

GUMMOW J:   It took it into account, in what sense?  It is a step in what sort of reasoning?

MR JOHNSON:   Yes, your Honour, it took it into account as part of the reason, not just an alternative reason, but as part of the reason for finding that they did not have a well‑founded fear of persecution upon return to China.  The difficulty in the present case which led to the Full Court deciding as it did is that in the case of SZJGV – I will deal with him first and then I will come to SZJXO – this is perhaps sufficiently explained by me taking your Honours to page 82 of the application book which is the part of the Full Court judgment which includes its summary of what the Tribunal did in SZJGV.

The Tribunal first made a finding that the applicant’s conduct in Australia, that is, his Falun Gong activities in Australia, and his evidence at the hearing led:

the Tribunal to find that he was not a Falun Gong practitioner in China since 1997 as he claimed and that his interest in Falun Gong is a recent invention designed to assist him in his endeavour to remain in this country by strengthening his claims against a protection visa application.”

It was at this point in the Tribunal’s reasons that it dealt with s 91R(3) of the Act and determined that it should disregard the appellant’s Falun Gong related activities in Australia.  The Tribunal found that “the [appellant’s] Falun Gong related activities in Australia are sur place claims and are subject to s 91R(3) of the Act.”  It therefore determined that it would disregard SZJGV’s “Falun Gong related activities in Australia.”

Now, just pausing there, to that point my clients have no difficulty –

The reasons continued:

“As the Tribunal rejected the [appellant’s] claim that he was a Falun Gong practitioner in China, the Tribunal does not accept that he participated in or conducted sit‑ins, or was questioned, interrogated or harassed by the authorities.  In reaching this conclusion –

and this is the critical part –

the Tribunal has had regard to the following additional reasons –

So just pausing there, in rejecting the applicant’s account that he had participated in Falun Gong activities in China, which was essential to its ultimate findings, the Tribunal had regard to the following additional reasons.  One of them is in that subparagraph commencing with the word “Third” –

Third, the totality of the [appellant’s] oral evidence shows a propensity to exaggerate and tailor his evidence in a manner which achieves his own purpose.  In reaching this view the Tribunal has had regard to his lack of knowledge about Falun Gong, his recent attempts to construct a profile of a Falun Gong practitioner for himself and –

and so on it goes.  Now, those italicised words, “his recent attempts to construct a profile of a Falun Gong practitioner for himself” relate to the very same Falun Gong activities in Australia that the Tribunal found it had to disregard because it was not satisfied according to that reverse onus in section 91R(3) that they were engaged in for a purpose other than strengthening his claims.

So, in short, the conduct which the Tribunal found itself obliged to disregard under 91R(3) because it was not satisfied that it was engaged in for a purpose other than strengthening the applicant’s claims, was in fact taken into account by the Tribunal contra the command of the section for the purposes of deciding whether he had a well‑founded fear.

GUMMOW J:   Well, that is the area of debate, is it not, the construction of 91R(3), which you said to us highlights the fact that this is a case where the construction question arises?

FRENCH CJ:   The very decision that 91R(3) was meant to overcome, in which I participated in Farahanipour, pointed out that although bad faith sur place action, to call it that in a sort of rolled up way, could not be excluded from consideration into telling whether somebody had a well‑founded fear of, in a sense, an objective basis, but nevertheless it might well impact upon the credibility of that person as to whether subjectively they actually have a well‑founded fear.  So there were credibility issues in the very decision, or an acceptance of findings adverse to credibility in the very decision which was sought to be overcome in terms of the positive use made of it by applicants in applications for protection visas.

MR JOHNSON:   Yes.  But if one of the legislature’s objectives in passing section 91R(3) was to deal with such judgments as Farahanipour and Somaghi, it could fairly be said that a sledgehammer was used to crush the nut, because when one goes to section 91R(3) it does a lot more than merely exclude claims which are based upon conduct ‑ ‑ ‑

FRENCH CJ:   Well, that becomes a question of the construction of the section, does it not?

MR JOHNSON:   Well, the point that I am attempting to make, your Honour, but although perhaps not as clearly or as directly as I should, is that there may very well be cases where it is less clear than it is here, but at the end of the day the Tribunal did take into account the very conduct that it is required to ignore for the purposes of deciding whether or not the person had a well‑founded fear of persecution.

KIRBY J:   Yes, but you cannot really dispute that the issue of construction is an important one that is often arising in applications of this kind and, at least as far as I am concerned, it is an arguable issue of construction and therefore in a mass production area of litigation, which we have to look at in many cases that are dealt with on the papers, it is an important issue to get clear.  It is tendered to us in this case, arguably, in a way that presents it to the Court for decision.  You are protected as to costs and the costs below are not disturbed.  So I am afraid it is very difficult, as far as I am concerned, for you to argue your way out of a grant of special leave in this case.  I have given you four reasons why my mind is travelling in that direction.

MR JOHNSON:   Indeed.  Well, the only thing which I think I can say to discourage your Honour is that it might not be a good vehicle.  Neither of these cases are a good vehicle in the sense that in each – the Minister does not dispute ‑ ‑ ‑

KIRBY J:   I realise that, but whether it is a good vehicle is bound up with what is the proper construction of the statute and therefore, in a sense, you have some feathers to fly with if and when the matter comes to the Court and that presents the case in a nice way, that the mind has to play upon the different factual permutations in order to resolve what the statute means and what it is getting at.  You might win in the end, but you might lose, that is the fun of it all, if you are a lawyer.

MR JOHNSON:   Indeed, your Honours.  But probably this does not go any higher, or what I am putting to your Honours does not go any higher in the context that your Honour has just put to me than this, that the Minister does not dispute what the Full Court found in that last sentence of paragraph 22 and if that is the proper construction of section 91R(3), then these applicants were entitled to succeed.

FRENCH CJ:   Thank you.  I notice, just in terms of the way the section works, Mr Johnson, that at 113 in the Minister’s submissions at paragraph 14 it says:

the section cannot be engaged until findings of fact have been made concerning the conduct of the applicant for a protection visa in Australia and the motivations for that conduct.

I would have thought that given the reverse onus the section is engaged when you have findings of fact about the conduct.  Now, the motivations then become a problem for the applicant for the protection visa.

MR JOHNSON:   Well, no one was suggesting, your Honour, for example, that the Tribunal could not have regard to what an applicant put in a claims document.  No one was suggesting that the Tribunal could not consider whether or not the alleged conduct in Australia had in fact occurred and, as the Full Court said, unless you do that, you cannot sensibly apply section 91R(3).  But section 91R(3) is engaged when a person has put to the Tribunal conduct ‑ ‑ ‑

FRENCH CJ:   Or the person relies on such conduct, conduct engaged in in Australia.

MR JOHNSON:   Yes, exactly.  Now, as soon as an applicant does that, the Tribunal has to apply this reverse onus of proof.

FRENCH CJ:   That is right.

MR JOHNSON:   If it is not satisfied as to the purpose, then it must disregard it.  Now, that may well in many cases involve a two‑tiered decision‑making process in the sense that the Tribunal has to first work out what evidence it has to disregard.  It is not dissimilar, for example, to a judge deciding to exclude evidence that he finds inadmissible.

FRENCH CJ:   No, the key lies in the words “in determining whether the person has a well‑founded fear”.

MR JOHNSON:   That is right.

FRENCH CJ:   In other words, when you say it has to disregard, it has to disregard in determining.  Now, the question is whether that process of determination relates to that aspect of establishing a well‑founded fear.

MR JOHNSON:   Yes, your Honour, I respectfully adopt that, and we say that in this case it was used by the Tribunal for that purpose, for the purpose of deciding whether or not the applicant had a well‑founded fear.  Succinctly put, in SZJXO the Tribunal took into account the conduct of the visa applicant in Australia insofar as it was satisfied that he would not become a Falun Gong practitioner if he returned to China or that he would have any significant involvement in Falun Gong.  So, it took his conduct into account in that respect.

In SZJGV it took his conduct into account in rejecting his claim that he was a Falun Gong practitioner in China and in not accepting that he participated in or conducted sit‑ins or was questioned, interrogated, harassed by the authorities.  So we say that on the particular facts of this case it is plain that the Tribunal did take into account the conduct for what could loosely be described as the prohibited purpose.

KIRBY J:   That statement that the Tribunal accepted that he would not if returned to China engage in Falun Gong activities, does that run into the reasoning of this Court in the Bangladeshi homosexual’s case, that the purpose of the Convention is to defend a minimum level of freedom of the people and that they should not be required to go back to particular countries and, for example, hide the fact that they are Christians or hide the fact of their sexuality.  Is that raised in any way in this case?

MR JOHNSON:   The short answer to your Honour is, no, but the Tribunal was not making any findings to the effect that it would be reasonable for them to suppress their Convention characteristics if they returned.

KIRBY J:   They do not use that formula, but it sounds to get rather close to it.

MR JOHNSON:   Well, I do not want to overplay my hand, your Honour, and if I could just take your Honour to the Tribunal’s ‑ ‑ ‑

KIRBY J:   It is not mentioned in the application book so I think we can disregard that issue.

MR JOHNSON:   Yes, the Tribunal said, at the bottom of page 28, that having made:

findings about the nature and motives for his contacts with Falun Gong in Australia I am not satisfied that there is any reason to believe he would become a Falun Gong practitioner if he returned to China or that he would have any significant involvement with the Falun Gong faith there.

So the Tribunal is relying upon its findings that the Falun Gong contacts in Australia were relied on only to further his claims or, more precisely, it was not persuaded they were engaged in for some other purpose, and then it says, well, by reason of that, I am not satisfied that he will practice Falun Gong if he returns.

KIRBY J:   Yes.  So that was a factual prediction really rather than a matter of judgment of what he should do?

MR JOHNSON:   Yes.

KIRBY J:   Yes, I follow.

MR JOHNSON:   In both of those matters that I have just pointed the Tribunal was relying on the conduct in Australia for the purposes of deciding whether they had a well‑founded fear on return.  I have nothing further, if your Honours please.

FRENCH CJ:   Thank you.  We will not need to call on you, Mr Beech‑Jones.  Just to clarify, Mr Beech‑Jones, the costs position, that will be on the basis that the Minister will not seek to disturb the costs order below in the Full Court, nor seek costs on the appeal?

MR BEECH-JONES:   Yes, and I think we, in fact, agreed to pay the respondent’s reasonable costs as taxed or agreed on this application and the appeal as well.

FRENCH CJ:   Yes, all right, thank you. 

Well, on that basis there will be a grant of special leave.  We will allow a day for it, though it will probably take less than a day I expect.

MR BEECH-JONES:   I would have thought half a day, your Honour.

FRENCH CJ:   Just to be sure.

MR BEECH‑JONES:   That is a matter for your Honour.

FRENCH CJ:   All right, thank you.  The Court will now adjourn.  Its next sitting will be on Wednesday, 10 December 2008 at 4.15 in Canberra.

AT 11.54 AM THE MATTER WAS CONCLUDED