MIMA v Respondents S217-2002

[2003] HCATrans 655

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S217 of 2002

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

RESPONDENTS S217/2002

Respondents

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 2003, AT 11.23 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   May it please your Honours, I appear with MR S.B. LLOYD for the applicant.  (instructed by Sparke Helmore) 

MR B.M. ZIPSER:   May it please your Honours, I appear for the respondents.  (instructed by the respondents) 

GUMMOW J:   Yes, Mr Basten. 

MR BASTEN:   Your Honours, as the Tribunal found, the respondents in this matter suffered serious harm in the Ukraine at the hands of fellow citizens because of their religion.  The Tribunal did not expressly find that there was no real risk of similar events occurring in the future.  However, it did find that the state was in no way complicit in, nor did it encourage or condone, such behaviour.  The language that the Tribunal used, in particular, at page 20 of the application book at line 45, is consistent with the so‑called “accountability theory” as to the role of the state in relation to the operation of the Convention.

GUMMOW J:   Just assist us for a minute.  On this English doctrine, is there any clear ruling yet in this Court? 

MR BASTEN:   No, your Honour.  The closest one gets is Khawar, but in that case the contravention of the Convention occurred because of the activity, hypothetically, of the state in its declining to provide protection to the victim of third party violence, when the perpetrators of that violence themselves had no Convention reason, so that Mrs Khawar could not have succeeded without involving the state in that manner in her complaint. 

In this case, the complaint is that the third parties themselves had a Convention reason for attacking the respondents, so that the only question which then arises is whether it is sufficient that individual citizens attack people on a Convention ground in circumstances where there may be a real risk that the state, albeit acting properly and to a reasonable standard through normal police and judicial elements, cannot guarantee that that will not occur in the future.  That is the question which has never arisen in this Court. 

GUMMOW J:   Never been resolved, anyway.  You say it has never even arisen. 

MR BASTEN:   It has been discussed, I think, in the course of arguments, your Honour, but it has not been resolved.  It is the question which arose in Horvath in the House of Lords ‑ ‑ ‑

GUMMOW J:   Yes, that is what I have in mind. 

MR BASTEN:   ‑ ‑ ‑ and in Khawar there was some discussion of that.  Justice McHugh, for example, had some difficulty with the manner in which the House of Lords approached the question, and that itself gives rise to a particular issue in this case.  But ultimately – and I do not want to take your Honours back through the differences between the “accountability” and the “protection” theory – ultimately, the reference to “protection” in the Convention may well be to diplomatic protection in the foreign country, but it is accepted in this Court, as we would understand it, that internal domestic protection is nevertheless an element in any claim and it may be a critical element.  We say that it is. 

In other words, if the state provides an adequate and reasonable level of protection, albeit that may not reduce the risk of an attack on a Convention ground being reduced below the level of the “real chance” test, nevertheless the Convention is not invoked and Australia’s protection obligations will not arise in that circumstance.  The judgment in the Full Court is squarely against that proposition.  I cannot say that there is no other authority in the Full Court which goes down the same line – I think there probably is.  None is referred to in the Full Court’s reasoning, but it is in order to agitate that matter which this application is brought to this Court. 

Your Honours, the critical passage in the judgment of the Full Court appears at page 53 of the application book.  At about line 12, having referred to the way in which the Tribunal dealt with the matter, the court said: 

These findings clearly raised an issue about whether there was a risk of harm for a Convention reason that the authorities could not provide protection against. 

And there is some ambiguity about that phrase “could not”.

The Tribunal did not address this issue because it had earlier made a finding that the harm suffered by the first appellant “must be seen as individual and random incidents of harm and not persecution”. 

Now, that adopts the proposition that there can be persecution without any consideration of the state’s acquiescence or involvement – that was actually a point on which the House of Lords divided in Horvath.  Then your Honours will have read on: 

The acts of harm were such that they could have been accepted, severally or in combination, as acts of persecution –

Really, it is in that passage that the Full Court rejects the proposition which I just put to your Honours.  It is a proposition which flows from that passage at page 20 of the application book in the reasons of the Tribunal at line 43, in the sentence beginning: 

For example, persecution by private individuals or groups does not bring a person within the Convention unless the State either encourages that private persecution or is (or appears to be) powerless to prevent it. 

That is a proposition which, with respect, is correct.  It refers to the passage in Chief Justice Brennan’s judgment in Applicant A, to which I think your Honour Justice Gummow went in Ibrahim’s Case, and then the Tribunal dealt with the case put by the applicant which, at line 10 on the next page, is, of course, a very different case from that which was agitated in the Full Court, namely, that there was active encouragement by the state of this sort of activity. 

Over the next two pages – your Honours need not go to it – the Tribunal rejected that argument.  Then at page 23 at line 40, the Tribunal says: 

This independent evidence does not negate the fact that the applicant was assaulted and that he was assaulted because some individuals were affronted by his religious beliefs.  However, these incidents must be seen as individual and random incidents of harm directed at the applicant and not as persecution for a Convention reason. 

Consistently, as we would understand it, looking for some state involvement in the very concept of persecution.  Then at page 25 at line 18, the Tribunal says: 

the Tribunal is not satisfied that the authorities can be said to be unwilling or unable to protect their citizens.  The fact that the applicant experienced incidents . . . cannot be taken as evidence that the authorities condoned such incidents.  On the occasion on which the police were alerted to an assault by the ambulance officers, they responded appropriately. 

We say, that is a sufficient and appropriate finding to justify the conclusion that the Tribunal reached in this case and the Full Court, in failing to accept that, appears to be imposing a requirement that the state provide a guarantee of protection in order for there to be no risk of any such individual activity occurring in the future.  That is a test which, with respect, we say, is wrong. 

GUMMOW J:   What do you say about paragraph 11 of Mr Zipser’s submissions on page 73, or 11 and 12, I guess?

MR BASTEN:   Well, it depends what you mean by “able to prevent such harm in the future”.  In relation to the state’s ability, there was a finding that it was both willing and able.  If, by that, it is meant that it had to guarantee that no such harm would occur in the future, we say that is a false test.  Your Honour said 12? 

GUMMOW J:   Alternatively. 

MR BASTEN:   Well, the matter is one of very significant importance, your Honour, because it directly raises the question which was decided in Horvath and has not been addressed in this case and ‑ ‑ ‑

GUMMOW J:   I think we would be assisted if we heard from Mr Zipser. 

MR BASTEN:   Yes, indeed, your Honour. 

GUMMOW J:   Yes, Mr Zipser. 

MR ZIPSER:   Your Honours, an important distinction in the position of the applicants and the respondents is that in relation to the decision of the Full Court of the Federal Court there is a difference in position as to what the critical finding was.  Mr Basten has taken the Court to the application book at page 53 and, at paragraph 17 of the court’s decision, has stated that the critical finding is the following sentence: 

These findings clearly raised an issue about whether there was a risk of harm for a Convention reason that the authorities could not provide protection against. 

In contrast, the respondents’ position is that the critical finding is, in fact, a paragraph earlier, commencing at the bottom of page 52, where the Full Court notes, at the bottom of page 52 of the application book, that: 

the Tribunal concluded that there was no evidence of general condonation or active participation in persecution –

et cetera.  Then it continues: 

However, the Tribunal did not address the question of possible future harm befalling the appellants or whether the Ukrainian government was able, in a practical sense, to prevent such harm, given the history of violence towards –

the visa applicant.  There are two points to make.  The first point is that, in my submission, it was open to the Full Court to conclude that the Tribunal erred in not addressing the question identified by the Full Court.  The second point is that if any passage is critical in the Full Court’s decision, it is the statement that the relevant question is: 

whether the Ukrainian government was able, in a practical sense, to prevent such harm, given the history of violence towards –

the visa applicant in the past.  We say that that is a correct statement of the law and that there is no error in that statement.  In general, this is a case in which ‑ ‑ ‑

GUMMOW J:   What do you say about – Mr Basten said it to us orally this morning, but what do you say about page 69 paragraph 3.10 of the Minister’s written submissions and following? 

MR ZIPSER:   In relation to paragraph 3.10 of the Minister’s submissions, it is correct to say that the Tribunal made a finding, which appears at page 25 of the application book at line 18, that:

the Tribunal is not satisfied that the authorities can be said to be unwilling or unable to protect their citizens. 

However, for a number of reasons, the Full Court concluded that, in making that finding, the Tribunal limited itself to asking the question of whether the state condoned the actions of private actors.  As an example, in that same paragraph on page 25 at line 24, the Tribunal uses the word “condoned such incidents”.  Similarly, on the previous page, page 24 at line 19, the Tribunal again uses the word “condoned” in the phrase “condoned the assault”. 

For those reasons arising from the use of that language, the Full Court was entitled to conclude that the finding of the Tribunal that the authorities can be said to be unwilling or unable to protect their citizens was limited to a consideration of whether the authorities condoned behaviour, but they did not address the fuller question of whether the state could provide effective protection to the applicant such that if he returned he would not have a well‑founded fear of persecution. 

GUMMOW J:   Thank you.  Now, Mr Zipser, I notice you are appearing on a direct access basis here. 

MR ZIPSER:   Yes, your Honour. 

GUMMOW J:   If there were a grant of special leave, the Court would hope that that continues.  Your clients have not had legal representation before, and it is greatly to their interest that they retain it. 

MR ZIPSER:   While it is up to my clients, I expect that they would continue. 

GUMMOW J:   Yes, we understand that.  We hope they are in Court.  We hope they hear what we are saying. 

MR ZIPSER:   I expect they would continue to have legal representation. 

GUMMOW J:   Yes, thank you.  We do not need to hear you in reply, Mr Basten.  We note, as appears from page 71 of the application book, that: 

The Applicant does not seek to vary the costs orders made below, does not seek costs if successful in these proceedings and undertakes to pay the reasonable costs of the Respondents of the appeal in any event –

which is a significant concession.  On those terms, there will be a grant of special leave in this matter.  The matter will be a one day case. 

AT 11.40 AM THE MATTER WAS CONCLUDED