MIMIA v SGKB

[2003] HCATrans 313

[2003] HCATrans 313

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A195 of 2003

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Applicant

and

SGKB

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 14 AUGUST 2003, AT 4.17 PM

Copyright in the High Court of Australia

MS S.J. MAHARAJ:   Yes, if it please your Honours, I appear for the Minister.  (instructed by Sparke Helmore)

MR J. BASTEN, QC:   I appear with MR S.D. OWER for the respondent, if the Court pleases.  (instructed by Refugee Advocacy Service of South Australia)

GUMMOW J:   Yes, Ms Maharaj.

MS MAHARAJ:   By way of addition to our written submissions that we have done, we wish to put some short core propositions to this Court and some of these propositions are fairly well established and they flow from the well-known cases like Chan and Guo’s Case.

The first proposition we advance, your Honours, is that the well‑founded fear test has both a subjective and an objective component.  Secondly, we say that the gravity of harm feared may colour the subjective content of this well‑founded fear test.

GUMMOW J:   Sorry, what is point two?

MS MAHARAJ:   The second point, your Honours, is that the gravity of harm that is feared by an applicant may colour or affect the subjective component of the well‑founded fear test but, in our respectful submission, it cannot colour the objective component of the well‑founded fear test.

Thirdly, we say that the objective component of the well‑founded fear test is a futuristic assessment of whether there is a real chance of persecution occurring.  This test may be informed by past events, as the High Court has said in Chan and Guo’s Case again.  We say, as the objective component is a futuristic assessment of chance, this is unaffected by the gravity of the feared harm and if gravity of the feared harm is introduced into the objective component of the well‑founded fear test, then it eschews or the application of the well‑founded fear test miscarries, which is what we respectfully say happened in this particular case.

We say, your Honours, that the Full Court in its passage which we set out in our reply on page 86 in paragraph 23, by saying at about line 20 that the “theoretical possibility of the death penalty” and the “theoretical chance of discrimination in government”, et cetera, and I am paraphrasing, your Honours:

could not determine whether the appellant’s fear was well‑founded without considering those matters, balancing their gravity against the relative improbability of their occurrence.

We say, your Honours, that in that passage what the Full Court has done is to take into account the feared gravity of harm, which is the death penalty that the applicant said that he would suffer upon his return to Iran.  Therein, your Honours, we say lies the error.  The way we put it is that this particular issue ‑ ‑ ‑

GUMMOW J:   What do you say about paragraph 19 of the Full Court’s judgment where Justices Spender, Dowsett and Selway are referring to the Tribunal’s reasoning?

MS MAHARAJ:   I did not get the page number, your Honour.

GUMMOW J:   Page 85, paragraph 19; they set out the Tribunal’s decision.  At about line 10:

The Tribunal has closely examined the country information available, which indicates little prospect of problems with the authorities unless a returnee declares on return his new affiliation.  The Tribunal has concluded that the Applicant would not suffer harm because of his conversion, if returned to Iran.

Then that is taken up in paragraph 20:

the Tribunal appears to have focussed upon the question of whether the appellant might “ . . . bring his conversion to the attention of the Iranian authorities on return or subsequently” rather than upon the possibility that the authorities might discover such conversion.

et cetera.  Is that not really saying that the Tribunal was approaching the matter on the basis that this gentleman who has converted to Christianity, which was accepted, will shut up about it?

MS MAHARAJ:   Your Honours, our answer to that is that in a passage ‑ ‑ ‑

GUMMOW J:   Or, to put it more politely, be discreet in the exercise of his religion?

MS MAHARAJ:   Your Honour, the issue of discretion, I have noticed from the transcripts of the special leave which has been granted in cases relating to homosexuality, is an issue.

GUMMOW J:   This is related to that.

MS MAHARAJ:   Yes, your Honour, it raises the same principle, but in this particular case there was no assertion or claim made by the applicant that exercise of any discretion on his part would cause him serious harm.  Your Honours would recall that not any conduct can amount to serious harm in the sense that it amounts to persecution under the Convention.  The claim mounted by the applicant here was that upon his return, if he is found out by the authorities, then there was a possibility of some persecutory conduct following from that.

GUMMOW J:   Yes.

MS MAHARAJ:   And one of those, as my learned friend says, was the death penalty, your Honours.

We would respectfully say that this particular case does not, if I can use the expression, throw up the principle of discretion which the other cases in the homosexuality area do because the applicant has to make out his claim and in this particular case he did not advance the claim that the exercise of discretion on his part would amount to serious harm, such that it would amount to persecution.

What we say is that the tenor of the general findings which were made by the Tribunal, which we have set out in our submissions on page 98, the paragraph at line 15, in the second line, that the appellant:

conduct on his return to Iran, the Tribunal does not consider that the [appellant] will bring his conversation to the attention of the Iranian authorities on return or subsequently.  The Tribunal has closely examined the country information . . . unless a returnee declares on return his new affiliation.

But a fair reading of the Tribunal’s decision, in view of the principles that fell in Wu’s Case from your Honours, it demonstrates that what the Tribunal was looking at was whether there would be disclosure directly or indirectly of this applicant’s conversion to the authorities in Iran, and it answered negatively.  To say that the Tribunal said anything else, your Honours, we say in our submissions is an unfair analysis of the Tribunal’s decision.

So the short point we make, your Honours, is that this is not the case that actually agitates that principle of discretion, which I do acknowledge is a matter of public importance that has been heard by this Court and I understand the decision is reserved, but this is a case with rather compassionate hard or humanitarian facts which has led the High Court to import into the objective component of the well‑founded fear test the element of the gravity of the harm that is feared.

GUMMOW J:   What do you say about the indemnity costs that are sought?

MS MAHARAJ:   We oppose that, your Honour.

GUMMOW J:   I thought - yes.

MS MAHARAJ:   We saw it as a throwaway line in the submissions without any foundation and it does not, on the face of it, come within the principles pronounced by the Federal ‑ ‑ ‑

KIRBY J:   Mr Basten is not given to throwaway lines; they are generally lethal.

MS MAHARAJ:   Our short submission, your Honours, is that we oppose that.  There is some…..made about the lateness ‑ ‑ ‑

KIRBY J:   It would be unusual, I think.  If we are minded to dismiss the application, we would have to hear what he has to say and you can maybe answer that better after you have heard how he puts it up.

MS MAHARAJ:   Yes, your Honours.  I think that is all we want to say in support of our application, if it please your Honours.

GUMMOW J:   Thank you.  Yes, Mr Basten.

MR BASTEN:   Your Honours, there is a basic flaw in seeking to translate the specific finding of the Full Court into a general proposition about a genus, of which the specific finding is said to be an example, in order to support a special leave application.  May I explain why that is so by turning to page 85 of the application book.  What the Full Court was concerned about at the bottom of that page, last line, is that the Tribunal:

ought to have considered whether or not the mere possibility of a death sentence, regardless of how remote that possibility might be, could itself constitute persecution.  In our view, to live under the shadow of such a threat might well do so.

This is not any threat; this is the threat of a death penalty.  At page 102 in paragraph 16 of the applicant’s submission, this is translated into this proposition:

It is . . . submitted that the Court below erred in law by holding that the seriousness of the alleged persecution, for example the death penalty –

thereby saying that there is a general proposition put in force here, namely, that the Full Court says that a very serious risk or a risk of a very serious outcome may otherwise colour what would not be a well‑founded fear.  That is not what the Full Court is doing and, with respect, it is misconceived to say that that is what it is doing.  Otherwise, the Full Court was correct to say as it did at page 85 at line 20, that the Tribunal considered only one way in which the authorities might have become aware of his conversion, namely, by self-revelation.  That was a legitimate criticism.  And at page 86 at line 10, they were also correct to note that the Tribunal had looked at likelihood instead of the well‑founded fear test of a real chance.

In other words, the matter is one which can properly and should properly be reheard.  There is no general issue or principle established by the case and it is not a matter which is appropriate for special leave.

GUMMOW J:   Why do you want these indemnity costs?

MR BASTEN:   I thought your Honour would ask me that.  Your Honour, it was not a throwaway line.  It was intended to invite the Court to exercise ‑ ‑ ‑

GUMMOW J:   It is a full paragraph, 4.2, it is half a page of formulation really.

MR BASTEN:   I am glad your Honour has read it.  It is formulation because the applicant in this case mandatorily holds the respondent in detention and then fails to comply with this Court’s rules in relation to time limits, and that is a matter about which this Court should be concerned.  However it is appropriate to exercise its concern is a matter for the Court.

KIRBY J:   The problem is that we have to be even‑handed, Mr Basten.  I mean, we have quite a number of cases and you have probably been in some where the applicants, through no particular fault of their own, get out of time and the Court is in those circumstances understanding.  The Commonwealth and the Minister is also made up of human beings who make mistakes, and why would we have a different rule?  If we start doing it in the case of the Minister, we would have to do it in cases involving applicants.

MR BASTEN:   Your Honours, the applicants do not hold the Minister in mandatory detention while awaiting the putting on of a summary, and secondly ‑ ‑ ‑

KIRBY J:   You say the Minister is going to cocktail parties and the applicant is in mandatory detention and there is a big difference?

MR BASTEN:   I do not say he is going to cocktail parties because I know he is a hardworking Minister, but it is people in his department who should be required to abide by this Court’s rules.  If there were a mistake that were made, your Honour, I would not be here.  There is no mistake called upon by the respondent.

KIRBY J:   What was the time default?

MR BASTEN:   Twice the allowed time.

KIRBY J:   What was the time default?

MR BASTEN:   One month - after requests were made for the summary to be put on in time and no explanation has ever been given, so we assume there is no explanation.  It is a matter of some concern to people in detention.

KIRBY J:   But how does the month default attract the indemnity costs and how does that operate in some way to sanction the month’s default in this particular case?

MR BASTEN:   Your Honour, as I said, it was a suggestion that the Court should indicate somehow that was a proposition that this sort of conduct should not properly be condoned.  At the time that these submissions were written, it appeared very likely that this man’s case would not be heard in these sittings because of the delay of getting the summary in.  It was a tight call and if that had happened he might have been in detention for some months as a result of the delay.

KIRBY J:   There is a hidden premise in your argument and that is that the Minister’s month delay would have delayed the matter coming before the Tribunal again for the second time.

MR BASTEN:   Indeed, yes.

KIRBY J:   It may be that that is not a justifiable conclusion, that the matter may not have got before the Tribunal before a certain date because of the business of the Tribunal.

MR BASTEN:   It would probably get into the queue a month later though, your Honour.

KIRBY J:   Presumably you can make a representation that the Tribunal can hear the matter earlier because of the Minister’s month’s delay.

MR BASTEN:   Your Honour, I do not want to waste the Court’s time on this.  The point I was seeking to make was that when those submissions were written there was a concern that the delay might have resulted in this matter not being heard by this Court.

GUMMOW J:   Well, it has not.

MR BASTEN:   That is right.

KIRBY J:   That being the case, the ground has disappeared, has it not?

MR BASTEN:   The ground for the costs order may disappear but the refusal to explain or give a justification for late filing is a matter of concern, your Honour.  It is merely a matter which this Court should not readily condone, it having been drawn to its attention.

KIRBY J:   What is the – no, I will ask the respondent.  What is the explanation for the delay?

MS MAHARAJ:   Your Honours, my instructions are that there were some delay in the clearance of the submissions by the department in Canberra.

KIRBY J:   But it is true, as Mr Basten says, we give applicants who are refugees - and not just refugees; corporations or anybody else - a very hard time if they are delayed and we generally require an affidavit explaining it.

MS MAHARAJ:   Yes, your Honour.  There is a lot of force in what my learned friend has said and what your Honour is putting to me.

GUMMOW J:   The Minister seems to have outsourced, if that is the word, the Solicitor’s work in this case.

MS MAHARAJ:   Pardon, I missed the question.

GUMMOW J:   It is not being done by the Commonwealth Government Solicitor.

MS MAHARAJ:   No, this is Sparke Helmore who are instructing in this matter.

GUMMOW J:   Yes, and without any reflection on them, that sourcing out process must give rise to delays in getting back to the department and getting the department to look at it, and so on and so forth.

MS MAHARAJ:   Yes, your Honour.

KIRBY J:   It sounds as though it was not Sparke Helmore’s problem.  The problem was approvals within the department.

MS MAHARAJ:   In Canberra.

GUMMOW J:   Yes.

MS MAHARAJ:   There was timely preparation of the submissions and the submissions did go to Canberra, but I think ‑ ‑ ‑

GUMMOW J:   Anyhow, is there anything else you want to say in reply?

MS MAHARAJ:   Just very short, your Honour.

The analysis that my learned friend has done of the decision about how to interpret it has some force, but at the end of the day we respectfully submit that page 86, paragraph 23, which is the note that the Full Court concludes its judgment on, gives rise to the concern that the Minister has in this case which has prompted the special leave application.

Regarding the indemnity costs, your Honours, we would say that there is no precedent in existence to support that.  I have given a short explanation but I do not have the full particulars regarding the delay, but if it satisfies my learned friend we will do better on that front.  In relation to the delay or the matter not getting listed here or before the Tribunal, it is speculation.

GUMMOW J:   We do not need to hear you any more on that.

The Minister for Immigration and Multicultural and Indigenous Affairs seeks special leave to appeal from the decision of the Full Court of the Federal Court of Australia.  That court found error in the approach of the primary judge and in the Refugee Review Tribunal.  The essence of the error appears from paragraphs 13 and 19 through to 25 of the Full Court’s reasons.  We consider that the Full Court was correct in the approach it took to the matter and we do not believe that there has been demonstrated any error in the approach taken by the Full Court.

Accordingly, special leave is refused with costs but not indemnity costs.

AT 4.37 PM THE MATTER WAS CONCLUDED