Minister for Immigration and Border Protection v WZAPN

[2015] HCATrans 26

[2015] HCATrans 026

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M99 of 2014

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Applicant

and

WZAPN

First Respondent

GRAHAM BARTER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

Application for special leave to appeal

HAYNE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 2015, AT 12.40 PM

Copyright in the High Court of Australia

MR S.P. DONOGHUE, QC:   May it please the Court, I appear with MR L.T. BROWN, for the applicant.  (instructed by Australian Government Solicitor)

MR R.M. NIALL, QC:   If the Court pleases, I appear with MR A.F. SOLOMON‑BRIDGE, for the first respondent.  (instructed by Maddocks Lawyers)

HAYNE J:   There is a submitting appearance for the second respondent.  The Court might be assisted if we heard first from you, Mr Niall.

MR NIALL:   May it please the Court.  If the Court pleases, special leave should be refused in relation to the construction of section 91R issue because the result arrived at by the Federal Court was correct.  In our respectful submission, special leave should be refused in relation to the procedural fairness issue because no submissions have been advanced in support of it and it was an application of settled principle.

Can I deal briefly with the construction point and make essentially four points?  Can I frame the construction point by reference firstly to the findings of the IMR which the Court will find at application book page 15, paragraph 81?  There your Honours will see in the middle of the paragraph the reference by the Reviewer to the guidance provided by the three paragraphs of 91R(2) identified, indistinguished, in our submission, and the reference to:

the frequency or length of detention, or the treatment . . . will involve serious harm –

Then in 82 the test positive is subject to harm which is “sufficiently significant to amount to serious harm”.  Over ‑ and the last reference if I may, your Honours ‑ at application book 17, paragraph 99, your Honours will see in the third dot point the critical finding of the Tribunal, or the Reviewer, I should say:

There is a real chance that he will continue to face arbitrary questioning and detention for want of identification documents in the reasonably foreseeable future.  He will also be deprived of the advantages –

and then the Reviewer goes on to say that is not –

serious harm within the meaning of the Act –

tying its reasons squarely to 91R(2)(a), the second bit –

is not for reason of a convention ground.

Those two conclusions are reflected in his Honour’s ultimate conclusion which founded the declaration at application book 119 at paragraph 45 where the Federal Court identified the application of the wrong test.  Now, before coming to the four points, can we make one general submission, is that 91R(2) does not conflate or assimilate serious harm of persecution.  They are two distinct concepts in the sense that serious harm falls within the overall relevant concept of persecution. 

HAYNE J:   Well, statutorily, 91R(1)(b):

the persecution involves serious harm to the person –

section 91R(2) is what serious harm is, or here are instances of what is serious harm.

MR NIALL:   The reasoning of the Reviewer was, well, because you do not fit within a threat to liberty, or the threat of the future is not a threat to liberty within the meaning of 91(2)(a), you do not need to go any further.  You are disqualified from any further analysis in relation to the question of persecution.  Now, the Minister seeks to support the construction effectively by saying that 91R(2)(a) is limited by an unstated qualification, namely, that the threat to liberty must be significant or significantly serious.

Now, the four points we make about the construction are, firstly, that qualification does not appear in the text of 91R(2)(a), in stark contrast to the other paragraphs of 91(2).  Secondly, the concept of a threat to liberty, using threat in the way this Court dealt with it in VBAO, or the risk that it is of course not fanciful or remote, a threat to liberty without the qualification accords with authority in this Court, and can I just take your Honours to the passages that Justice North cited at ‑ ‑ ‑

NETTLE J:   Are they all the human rights cases about the ‑ ‑ ‑

MR NIALL:   No, your Honour.  The two passages are from Chan and from Haji Ibrahim which your Honours will see at application book 116, paragraph 33 and 34, paragraph 33 dealing with a passage from his Honour Justice Dawson’s judgment in Chan where his Honour noted:

a general acceptance that a threat to life or freedom for a Convention reason amounts to persecution –

and down the bottom, or the middle of the page, line 32, Justice McHugh’s observation in Haji Ibrahim:

Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution –

So the context, in our submission, was that the threat to liberty was sufficient to engage the Convention protection.  At that point it is important to bear in mind that both pre and post 91R is not entirely possible to divorce the question of serious harm from the reason for which the harm occurs.  This Court has indicated in a number of cases the nature of the compound conception of a well‑founded fear of persecution for a Convention reason, and whether the conduct is undertaken for a Convention reason cannot be entirely divorced from the question of whether there is persecution.

Now, the significance of that submission is this, that the force of the Minister’s submission is that the bar has been lowered significantly.  In our submission, that is not right because even if there is a finding of serious harm being a threat to liberty, it is still necessary to look at issues such as length, frequency, purpose and conditions in the other paragraphs of 91R and the issues there entailed.

So the questions and the facts of the length of detention, the frequency of detention, the purpose of detention and the conditions of detention may well be engaged in the question of whether the conduct was for the essential and significant reason of a Convention ground and, secondly, whether the persecution involved systematic and discriminatory conduct.  So, in our submission, the question for the decision‑maker here is whether there is a threat to liberty; that is the critical question, without any gloss.  Now, we would accept that a distinction may be drawn between a loss of liberty and a mere restriction on the freedom of movement, but that is a distinction born from the word “liberty” rather than a qualification on the seriousness of the loss of liberty.

The weight that the Minister’s submission seeks to put on this question of liberty in paragraph (2)(a) really falls away once it is appreciated, in our submission as it must, that all of the qualifications are going to be relevant to distil the overall question of whether in the future there is a real chance of persecution.  It is almost, in our respectful submission, impossible to isolate a single incident of detention in looking at the question of persecution from whether it was arising from “systematic and discriminatory conduct”, whether it was for the “essential and significant reason” of persecution. 

That compound conception which the Act in 91R does not do away with but rather advances is a vital aspect of the protection, and the problem, in our submission, with the Minister’s construction is that it erects an early hurdle which does not require consideration of the balance of all of the factors which must be brought into play in order to arrive at a conclusion of whether the person seeking asylum has a well‑founded fear of persecution.

HAYNE J:   What is the Convention reason that is engaged by these repeated detentions?

MR NIALL:   In this particular case, your Honour?

HAYNE J:   Yes.

MR NIALL:   Social group.

HAYNE J:   Identified as?

MR NIALL:   And race, your Honour.  The social group is identified, stateless people.

HAYNE J:   That is people without identification.

MR NIALL:   Without identification ‑ Faili Kurds in Iran.  So these issues which come in the mix, it is important, in our submission, that a sequential analysis does not preclude the ultimate question, and section 91R is effectively facultative but it does establish minimum bases.

HAYNE J:   I think a complaint which the Minister might be understood as making about the judgment below is that it invites a sequential approach to the issue that masks the need to identify whether there has been persecution for – or there is a real chance of persecution for a Convention reason.

MR NIALL:   In our submission, that does not follow from his Honour’s conclusion because the question – his Honour was really addressing the finding at page 17, fourth dot point:

The above harm does not amount to serious harm within the meaning of the Act –

It was a very limited finding, and the second finding that the decision‑maker went on to is not for a Convention ground and was overturned on a procedural fairness point.  In our submission, it does not invite sequential thinking, but to lower the burden – or sorry, raise the burden, I should say, or to impose a qualification adds an invitation, in our submission, to the decision‑maker to engage in sequential decision‑making which is not supported by the text of the Act nor the application of the Convention.

So for those reasons, in our submission, the qualification that the Minister would seek to put on the text is not warranted.  His Honour was

correct to identify error, and the declaration his Honour made ‑ and your Honours will see that at application book 131 ‑ was correctly made.  For those reasons on the 91R point, special leave should be refused and, in our submission, there is nothing said by the Minister that would warrant this Court intervening in relation to the finding in relation to a denial of procedural fairness.  It involved an application of settled principles and no specific error is identified.

So for those reasons, if the Court pleases, special leave should be refused.  May I note that the Minister has indicated the conditions on which special leave would go from the Minister’s perspective in terms of not disturbing the cost orders below and that the Minister would pay the first respondent’s costs in this Court.

HAYNE J:   Yes.  Now, the Minister has pointed to another case, that is, another application for leave that is pending where the Minister boldly submits that he will consent to the grant of special leave – an interesting concept – but if leave were to be granted in this matter, is it one that, so far as your side is concerned, would conveniently be listed with them and heard either at the same time as or immediately in conjunction with the other matter?

MR NIALL:   There is no reason why not, but having said that, I have read the submissions for the applicant for special leave to which the Minister proposes to consent.  They do not, with respect, identify any different issue, and it is entirely a matter for your Honours whether it would be appropriate to stand that matter out or to have a second matter joined within it.  We would have no submissions to make, but there would be no detriment to the presentation of our argument to have the matter resolved.

HAYNE J:   A point of bringing them both on would be that if leave were to be granted about 91R, the point is determined shorn of what you say is a complication about procedural fairness.

MR NIALL:   If your Honour pleases, yes, that may be so.  Just one other matter, that matter is slightly trailing, and if our ‑ ‑ ‑

HAYNE J:   Yes, they would have to catch up.

MR NIALL:   If your Honour pleases.

HAYNE J:   Yes.  Mr Donoghue, there will be a grant in this matter.  Two things; first, the conditions of the grant would be as Mr Niall indicated, I assume.

MR DONOGHUE:   Yes, your Honour.

HAYNE J:   No disturbance of costs below, pay the respondent’s costs in this Court, in any event; does that capture the conditions?

MR DONOGHUE:   Yes.  I think we said pay their reasonable costs in this Court, but yes.

HAYNE J:   Second, this other case.

MR DONOGHUE:   Yes.

HAYNE J:   I understand you to say it is one that should get leave, should catch up.

MR DONOGHUE:   Yes.  The main point that might assist the Court being, one, there is not the complicated factor to which your Honour referred, but two, factually, the suggested application of Justice North’s reasoning in that case concerns a Sri Lankan Tamil returned to be, on the factual finding, likely to be held for a matter of hours at the airport.  So it generates the issue in a starker form and in a form that is likely regularly to arise.

HAYNE J:   The failed asylum seeker as a social group and because there is a law that may lead to detention of that person, the person becomes a refugee.

MR DONOGHUE:   Yes.  So it would be helpful to have the Court analyse the relevant issues through that prism.

HAYNE J:   Yes.  Well, now, how best do we set about achieving this question of a joinder of the two matters?

MR DONOGHUE:   Your Honour, we would have it in mind that if your Honours were minded to grant leave here, leave could be granted in that matter on the papers and then equivalent directions made in the two matters to bring them both forward.  I do not presently hold a brief in that other matter and I do not have instructions as to the position on costs that we would adopt there if there were to be two different legal teams, so that may be a practical matter that would need to be worked out.

HAYNE J:   On the face of it, it would seem to at least ask that there is much to be said for joining them.  I think, Mr Donoghue, the Minister’s side and those instructing you more particularly will have to have the carriage of getting it joined.

MR DONOGHUE:   Yes.

HAYNE J:   That will mean bringing it to the attention of the Registry as a matter where the Minister does not oppose the grant; the Minister does assert that it should be heard together and suggesting to Registry that it should be put before a panel for consideration of grant.  That will entail the Minister’s side having worked out whether there is to be a dispute about conditions.

MR DONOGHUE:   Yes, I understand that, your Honour.

HAYNE J:   But, in the end, can I bat the ball firmly into the court of those instructing you?

MR DONOGHUE:   Of course, your Honour, we will take that on board and we will get onto that immediately.

HAYNE J:   Now, if the two come up together, how long?

MR DONOGHUE:   I would think a day.

HAYNE J:   A day, Mr Niall, do you think for both?

MR NIALL:   Yes, your Honour.

HAYNE J:   Yes.  There will be a grant of special leave in this matter on the terms that the Minister not seek to disturb the costs orders made in the courts below and that the Minister agree to pay the reasonable costs of the respondent in the appeal to this Court, in any event.  The case will be fixed on the assumption that it is a day case.

Directions will be given to those instructing counsel.  Those directions presently provide for an abbreviated timetable with a view to having the case at least ready for inclusion in the April sittings.  If then this case is to be joined with the other case which is pending, those instructing counsel for the Minister will need to move very promptly if the two cases are to be joined together.  Is there any other matter that I need to deal with?

MR DONOGHUE:   No, your Honour.

MR NIALL:   No, thank you, your Honour.

HAYNE J:   There will be orders in those terms.  We will adjourn until 2.00 pm.

AT 1.00 PM THE MATTER WAS CONCLUDED