MIMA v Khawar

[2001] HCATrans 172

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S232 of 2000

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

NAIMA KHAWAR

First Respondent

MEHR-un-NISA KHAWAR

Second Respondent

SANA KHAWAR

Third Respondent

MUHAMMAD AHMED SAEED

Fourth Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 JUNE, 2001, AT 9.35 AM

Copyright in the High Court of Australia

_________________

MR R.R.S TRACEY, QC:   If the Court pleases, I appear with my learned friend, MR J.D. SMITH, for the Minister.  (instructed by the Australian Government Solicitor)

MR J. BASTEN, QC:   If the Court pleases, I appear for the respondent.  (instructed by Coelho & Coelho)

GLEESON CJ:   Yes, Mr Tracey.

MR TRACEY:   If the Court pleases, this application highlights a difficulty that has arisen in the Federal Court in reconciling decisions of this Court, particularly in Applicant A and in Chen, with the High Court’s decision in Islam.  Your Honours will recall that the issue arose in Chen but the Court did not feel it necessary to pass on those problems when the judgments were delivered, but the difficulties have arisen in stark form in the present proceeding and in order to make good that proposition may I briefly rehearse the course of events that brings the matter here.

GAUDRON J:   But what do you say the problem is?  What do you say the inconsistency is?

MR TRACEY:   Well, the inconsistencies are numerous, your Honour.  They are, firstly, that the court in this case has said that the Tribunal should have considered the possibility of a particular social group entitled “women in Pakistan” or, alternatively, a particular social group entitled “married women in Pakistan”, and it is ‑ ‑ ‑

GLEESON CJ:   I thought it was a little narrower than that.

MR TRACEY:   Well, we say it should be a lot narrower than that, your Honour, but they were the two categories that her Honour Justice Branson said should have been considered but were not and it was on that basis that she sent the matter back to the Tribunal.  Now, we would submit ‑ ‑ ‑

GLEESON CJ:   Would you accept a slightly narrower category of “abused married women in Pakistan”?

MR TRACEY:   Yes, we would say it would have to be that and we say that the moment that it is narrowed in that way, then it falls as inconsistent with what this Court had to say in Applicant A about bringing the source or cause of the persecution into the categorisation of the group and the Court has said that cannot be done, whereas, in Islam ‑ ‑ ‑

GLEESON CJ:   It is a little more complicated than that, is it not:  a combination of what I might call the source of the groups concerned, if I can use that expression, plus the attitude of the State towards it?

MR TRACEY:   Well, your Honour, there again, the evidence in this case went no further than the fact that the lady had on a couple of occasions visited a police station and, on her assessment, received less than full support, but there was no evidence of any State laws, as in Islam, your Honour will recall that the victim came up against State laws that required multiple witnesses for adultery and, if she lost, she faced serious harm at the hands of the justice system.

Now, there was no suggestion in the present case that the lady concerned had sought to engage the courts in Pakistan with a view to obtaining protection.  The furthest it was put was that, as I say, she had been the local police station and received less than a wholehearted response from the policeman who was there.

GLEESON CJ:   Do they have AVOs in Pakistan?

MR TRACEY:   There was no evidence of that, your Honour.  I do not know.  But, clearly, on the Islam theory, it would be sufficient for this lady to succeed that she be found to be a member of a particular social group called “married women in Pakistan” or “women in Pakistan”.  We submit that, as Justice Hill has pointed out, logically that is not enough because this lady on no view of the evidence could be said to have been persecuted by her husband because she was a member of a social group of “women in Pakistan” or “married women in Pakistan”.  The factual finding of the Tribunal is that she was persecuted by reason of family tension.  She had not brought a dowry ‑ ‑ ‑

GLEESON CJ:   Is the persecution said to arise from a combination of what her husband does to her and what the authorities do not do about that?

MR TRACEY:   Your Honour, that was certainly said by the majority in the Full Court.  The majority attributed to the Tribunal the view that it was not necessary to pass on those matters because of its finding in relation to the reason that the lady had been persecuted.  Now, there is nothing in the Tribunal’s reasons that suggest that it took that approach, but can I just go back a step?  Justice Branson found error for two reasons – and this appears at page 37 of the application book.  Her Honour found error with the Tribunal for failing to make a finding that the lady was a member of a particular social group ‑ ‑ ‑

GAUDRON J:   Well, not that she was a member; whether or not she was a member, is it not?

MR TRACEY:   The allegation against the Tribunal, your Honour, was – and what I am reading from now is just below halfway on 37:

the Tribunal reached a conclusion on the question of whether the applicant’s fear of persecution was for reason of her membership of a particular social group without first identifying the relevant social group.

Now, we submit the Tribunal made no such error, because when one goes back to the Tribunal’s reasons, what one finds at 16 is that the Tribunal considered all of the particular social groups that had been urged as possibilities, not just “women in Pakistan”.  The Court will see this at line 32 and following:

The Tribunal finds that the applicant’s husband was not motivated to harm her because she was a member of a particular social group.  There is no nexus between the harm which the applicant claims to have suffered at the hands of her husband and the Convention ground of particular social group.  She was not harmed because she was a member of any of the particular social groups proposed by the applicant’s adviser –

and the whole lot is set out.  It appears that the applicant’s adviser did not urge the Tribunal to consider the possibility of “women in Pakistan”, but it certainly urged “married women in Pakistan”.  The Tribunal looked at all the possibilities and still said, “No, we find there is” ‑ ‑ ‑

GAUDRON J:   Yes, but in that context it was asking itself why the husband treated her as she claimed.

MR TRACEY:   That is so.

GAUDRON J:   Well, one knows presumably, or one can have a good guess, why a husband does that sort of thing and he does not do it, usually, because a person is a member of a social group.  Justice Branson was saying there was a further question to be asked, and that is whether, to paraphrase, that conduct was sanctioned by the State because she was a member of a particular social group.

MR TRACEY:   Your Honour, she suggested two particular possibilities, namely, was a group comprised of Pakistani women or, alternatively, married Pakistani women.  She suggested that specifically because of what Lord Steyn had said in Islam on the point, and that appears at the top of page 37.

GLEESON CJ:   What do you say about Islam?

MR TRACEY:   We say that Islam is wrong, your Honour, and it is certainly inconsistent with Applicant A and Chen because it leaves open the possibility of somebody being found to be a member of a particular social group, even though the persecution that is complained of is not inflicted for a Convention reason.

GAUDRON J:   But you are identifying the husband’s abuse as the persecution, are you not?

MR TRACEY:   Yes, we are, your Honour.

GAUDRON J:   Yes.  Now, if you move that either back or up a step – I do not know which way – and look at it as the State’s sanctioning of that abuse, you get a different question, do you not?

MR TRACEY:   Yes, if there is evidence in a given case that the State has encouraged or incited or something like that, you may well have a situation in which you could say that the State was complicit.

GLEESON CJ:   What about just having a policy of not doing anything about it?

MR TRACEY:   Well, on Islam, that would be sufficient; on this Court’s decisions so far, it would not, and there is a distinction drawn between inaction and action on the part of the State.

GAUDRON J:   Where do you say that distinction is?

MR TRACEY:   It arises in the decisions that are reviewed by Justice Hill and the authorities that he reviews are set out in the reasons in his judgment starting at 53, but if I could just take the Court to Chen’s Case because that is fresh in mind.  Your Honours will recall that the judgment of this Court in Chen turned on the basis that the State actively penalised parents and, indirectly, children, who were born after the first child, so that there was an emphasis in Chen on the active involvement and encouragement of persecution by the State, as distinct from the State simply standing back and doing nothing.  The distinction was drawn between the State not actively assisting and, on the other hand, the State having laws or policies that brought about a deprivation of basic standards of protection, food, education and so on, from black children.  That is not this case.

The highest, as I have already submitted, that the evidence goes in this case is that the lady made some visits to a police station and got an indifferent response, that there was no suggestion that this was the emanation of some State policy or the effect of some State law that brought about that result.  It is in those circumstances hardly surprising that the Tribunal did not turn its mind to it.  The Tribunal responded to the case that had been put to it.

GAUDRON J:   Well, it does not matter whether it is surprising or not, but you have to go so far as to say, do you not, that mere inaction by a State in the face of abuse of its citizens by other citizens can never constitute persecution, whether or not its inactivity is the result of a policy?

MR TRACEY:   Yes, your Honour.  The position under the Convention is that the State must be unable or unwilling, and that assumes State knowledge of what is going on.  There is no evidence of that kind in this case at all.

GAUDRON J:   I do not recollect that part of the Convention.

MR TRACEY:   I am sorry, your Honour, I ‑ ‑ ‑

GAUDRON J:   I do not recollect any words in the Convention saying that the State must be unable or unwilling.

MR TRACEY:   Those words, yes, they are there but ‑ ‑ ‑

GAUDRON J:   I know a person must be unwilling or unable to avail ‑ ‑ ‑

MR TRACEY:   To avail ‑ ‑ ‑

GAUDRON J:   Yes, but I do not remember – is there anything ‑ ‑ ‑

MR TRACEY:   No, your Honour.  Those words have been picked up and used in case law that has interpreted the Convention.

GAUDRON J:   By this Court?

MR TRACEY:   I cannot tell your Honour it is this Court.  It has certainly been used in the American jurisprudence and I do not think it was used in Islam either, so I think that the issue has not squarely arisen in this Court, but the way we would put it is that that is how the test ought to be formulated.  If the position is that a State is not aware of particular domestic violence and has no policy as to how ‑ ‑ ‑

GAUDRON J:   Well, in this case though complaints have been made – well, on the hypothesis on which this matter is proceeding at this stage the evidence is that complaints were made and that evidence was not rejected, was it?

MR TRACEY:   No.  There is no evidence about the rejection but, your Honour, in this country today on a regular basis, perhaps less regularly than in the past, complaints of domestic violence are not given the treatment that the complainants would wish by the police and no one would assert that Australia is in breach of its Convention obligations as a result of that.  It is a wholly different matter if the State had a policy that said that policemen were free or, indeed, should ignore such complaints and take no steps to assist the person who makes them.  That is a very different thing and it is in that sense that we make the submission that the law as properly stated ought to be that the State has got to be unable or unwilling.

GLEESON CJ:   What did Justice Branson say about that?

MR TRACEY:   The extent of what she said on the point, your Honour, appears at the top of 37.  She said that:

The Tribunal in the present case did not explicitly refer to the context provided by the Convention when considering the issue of the motivation of the applicant’s husband in acting violently towards her.  It did not determine whether the applicant is a member of a particular social group . . . unnecessary in the circumstances to determine whether the applicant is a member of a social group may explain why it did not give consideration to information concerning the status of women, and the prevalence of domestic violence against women in Pakistan or to the applicant’s evidence that her husband had said, in effect, that the police could do nothing about his violence towards her.  Had the Tribunal made the finding that the applicant was a member of a ‑ ‑ ‑

GAUDRON J:   One of the difficulties with your argument, Mr Tracey, seems to me to be that it is a matter for the Tribunal to determine those things.

MR TRACEY:   Well, if they are invited to, yes, your Honour, but the Tribunal has to respond to the case that is put and it was no part of the applicant’s case before the Tribunal that State complicity was an issue and

the highest it seems to have been put before the Tribunal was that these complaints had been made and not acted upon.  But there was no evidence called about any State attitudes towards domestic violence.  There was no evidence called about whether the courts would be able to assist if this lady sought protection from the judicial system.  There was nothing of that kind before the Tribunal and, as Justice Branson seems to suggest, the Tribunal did not consider those matters and she does not think they considered them because she says, we submit incorrectly, that the Tribunal never turned its mind to a particular social group, and the Tribunal had done that and rejected all of the ones proposed as having been a group by reason of which this lady was being persecuted and that error, or what we submit is an error, is founded squarely, as her Honour puts it, on what had been said in Islam about State‑tolerated and State‑sanctioned gender discrimination, and that was a wholly different case because it was a case based on State law and the rules that affected women who sought to engage the judicial system.

GLEESON CJ:   Thank you, Mr Tracey.

MR TRACEY:   If the Court please.

GLEESON CJ:   Mr Basten.

MR BASTEN:   Your Honours, I think it is common ground that the Tribunal disposed of this case solely on the basis that the claimant feared harm from her husband, which was not on a Convention ground, and that it gave no consideration to the possibility that the lack of State protection, which might, indeed, be based on a Convention ground, namely, membership of a particular social group, could form a proper basis of her fear of persecution.

At the end of the day, the difference between us appears to be whether this case was run on that basis before the Tribunal.  That, we would respectfully say, is not a basis on which your Honours would grant special leave if it were otherwise inappropriate.  If I may take your Honours to page 95 of the application book, in paragraph 127 Justice Lindgren sets out in a summary form, on the basis of material which, of course, was before his Honour, what the case put was.  As he says about line 25, there were:

two lengthy written submissions . . . addressing the issue whether the Pakistani authorities discriminate against women in terms of unequal status under the law and before the courts and by governmental and police inaction.

And the last sentence at line 35:

The case sought to be made on her behalf was that for various reasons there is a well established pattern of discrimination against women and in favour in men, and, in particular, an unavailability of protection of women against the violence of men, accepted and acquiesced in by those organs of the state that are charged with a protective role.

The RRT did not address this material –

and, your Honours, with respect, we say it is, as your Honour Justice Gaudron suggested, a matter which requires findings of fact in order to know whether the issues which the Minister seeks to agitate truly arise.  The common ground between the majority and the minority perhaps appears from paragraph 78 at page 78 where Justice Hill, at the top of the page, at line 10, says:

The question that remains, however, is whether Islam should be treated as authority for the proposition that persecution may fall within the Convention where the persecution consists of harm which is not Convention related and the State is not complicit in that harm, nor tolerate it, but is indifferent or inactive in dealing with that.

That may involve a fine distinction.  There are no findings of fact by the Tribunal in this case as to which side of the line this case falls.  Until those findings are made, it is not an appropriate case, in our submission, to consider that matter.  Of course, where his Honour disagrees with the majority appears at line 50 on that page.  He says:

There is no finding of fact –

which is true –

or for that matter any suggestion that the protection of the courts in Pakistan was unavailable to Mrs Khawar, had such protection been sought, any more than in Australia.

GLEESON CJ:   But the decision of Justice Branson was to remit the matter to the Tribunal for further consideration according to law.

MR BASTEN:   Yes.

GLEESON CJ:   And that was upheld by the majority in the Full Court.  So what the applicant for special leave seeks to do is to say, as I understand it, that the decision of the Tribunal was in accordance with law because on the material before the Tribunal the Tribunal could not have concluded that this was Convention persecution.

MR BASTEN:   Yes, that is so.  It could not have concluded.

GLEESON CJ:   Yes.

MR BASTEN:   That means that even if, presumably, the State were found to be tolerant of or complicit in the action, it could not.  Now, he does not put his case that high, as I understand it, but, with respect, he must do because until those matters have been determined on the facts, as they were in Islam before the matter went to the House of Lords, it is difficult to know whether the precisely correct test has been applied or not.  These findings are fact specific, even in relation to individual countries.  The Tribunal might make a finding that there was no relevant involvement but, your Honour, the test was noted in Chen, and we refer to the passage at page 120 in my summary where the Court said:

Denial of basic human needs is, however, positive action, not inaction.

It is at line 25 on page 120.  Now, that we would respectfully say is correct.  The Court would not revisit that.  The question of fact in this case will be whether or not there was a denial of the protection available under the law in relation to women in the position of this applicant/claimant in Pakistan.  Once those findings have been made, it may be possible to consider whether questions raised in Applicant A and in Chen’s Case need to be revisited by this Court.  We would say, with respect, that that point has not arisen at this stage and there is nothing which is necessarily inconsistent, on the face of it, between what was said in Islam and what this Court has said in Chen, and my friend did not manage to refer your Honours to any passage which demonstrated such an inconsistency.

GAUDRON J:   Although Chen clearly does not go so far.

MR BASTEN:   It does not deal with the point, I suppose, your Honour.

GAUDRON J:   Yes.  It does not decide it one way or the other.

MR BASTEN:   It does not decide it and maybe it will be necessary for this Court to decide it, but one would think on facts which have been found.  At pages 94 to 95 might I just drawn your Honours’ attention to paragraph 123 and 126 in the judgment of the majority.  Justice Lindgren, of course, was not about to make findings of fact.  He says:

If the authorities in Pakistan routinely withheld from “women in Pakistan”, or “married women in Pakistan”, protection against violence by men or by their husbands (the RRT did not make any

finding in this respect), I find it difficult to see why that denial of protection could not be persecution by the state “for reasons of” membership of a particular social group.

He put is rhetorically there, but at paragraph 126 he says that that proposition could be not be sustained.  The possibility remains open, the findings need to be made, and in those circumstances this is not at this stage, we would say, an appropriate case for special leave.  If the Court please.

GLEESON CJ:   Mr Tracey.

MR TRACEY:   Can I just deal with the point about what Justice Lindgren said had been put to the Tribunal.  Our friend took your Honours to 95 and referred to various documents that had been put, but the way Justice Lindgren characterised the way in which that material had been relied on is not consistent with the way the Tribunal recorded the way the argument had been put below.  I would refer the Court to what the Tribunal said in that regard at 13 and 14.  The Tribunal did not understand that an argument was being put to it that there was an established pattern of discrimination against women and in favour of men and so on as his Honour Justice Lindgren seemed to think the material was relied on or, rather, that that was the purpose for which the material was relied on.

The second thing that we would wish to say briefly in response is that on both the points on which Justice Lindgren upheld the decision the error that he alleges was made by the Tribunal was not made.  At 90, the Court will see his ‑ ‑ ‑

GLEESON CJ:   Just before you go too far into this.  I presume you are not seeking special leave on the ground that the decision of the Full Court simply turned upon a misunderstanding of the way the case was conducted in the Tribunal or the way the Tribunal reasoned.  That would not be a special leave point, would it?

MR TRACEY:   No, no.

GLEESON CJ:   I would understand your argument to be – correct me if I am wrong – that on the material before the Tribunal the Tribunal could not have concluded that this was a case of persecution.

MR TRACEY:   Yes.  That is precisely how it is put, your Honour, and the only reason for taking your Honour quickly to this material is to show that his Honour mischaracterised what the Tribunal did in a way that enabled the Islam principles to be brought to bear, but at the end, your Honour, the critical thing is that Justice Branson’s order remained undisturbed and the matter has been sent back to the Tribunal to proceed as if Islam were good law in this country and we submit that that is an invitation to error because Islam is inconsistent with the jurisprudence established by this Court.

GLEESON CJ:   Can you just state briefly why you say on the material before the Tribunal the Tribunal could not have concluded that this was a case of persecution?

MR TRACEY:   Yes, because the evidence went no further than the fact that this lady had presented herself at a police station, made a complaint and an inadequate response was made by an individual policeman.  That was the extent of it.  There was no evidence about States having, for example, given directions to the police to respond in this way or encouraged police to do it.  There was nothing of that kind.

GAUDRON J:   Well, you rely on the distinction made by Justice Hill between inactivity and active condonation?

MR TRACEY:   Yes, and we say that although this Court did not decide it in Chen, this Court recognised the distinction and its importance in the context of interpreting this Convention.

GLEESON CJ:   Your argument is that on the material before the Tribunal no stronger conclusion was open than that this was a case of an inactive or unresponsive policeman?

MR TRACEY:   Yes, your Honour.

GLEESON CJ:   Yes, thank you.

MR TRACEY:   If the Court pleases.

GAUDRON J:   Mr Tracey, I am looking at paragraph 4.2 of the respondent’s submissions, page 121, as to the costs order in the event that special leave were granted.

MR TRACEY:   Yes. Your Honour, we have instructions that if there is a grant of leave that the Minister will bear the costs of the appeal regardless of the outcome and will not seek to disturb the costs order made in the court below.

GLEESON CJ:   In this matter there will be a grant of special leave to appeal on condition that the Minister will agree to bear the costs of the respondent of the appeal in any event and will not seek to disturb the costs orders made in the courts below.

AT 10.09 AM THE MATTER WAS CONCLUDED