Minister for Immigration and Citizenship v SZNWC

[2011] HCATrans 130

[2011] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S20 of 2011

B e t w e e n -

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Applicant

and

SZNWC

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MAY 2011, AT 10.02 AM

Copyright in the High Court of Australia

MR S.B. LLOYD, SC:  If the Court pleases, I appear with MR T. REILLY for the applicant.  (instructed by DLA Phillips Fox Lawyers)

MR N.J. WILLIAMS, SC:   May it please the Court, I appear with MR P.D. REYNOLDS for the first respondent.  (instructed by Fragomen)

FRENCH CJ:   Yes, Mr Lloyd.

MR LLOYD:   If I could ask your Honours to go to the court book at page12.  Paragraph 67 is the critical conclusion by the Tribunal.  What the Court will see is that the Tribunal, we say, appreciated (a) that there is a distinction between a person’s conduct and a person’s membership of a particular group, appreciated Justice Dawson’s guidance that that distinction should not be taken too far but made a finding of fact that in the circumstances of the laws pertaining to deserters from Bangladeshi ships and Bangladeshi deserters from foreign ships, that those laws were directed to the conduct of the persons who face prosecution and not to any membership of a particular social group.  That was premised upon a finding that there was a particular social group of Bangladeshi ship deserters, which I perhaps stop and say is not the full embrace of everybody covered by the laws.  So the laws also include ship deserters from Bangladeshi ships albeit foreigners.

FRENCH CJ:   These are swept up in the words “or similar”.  I think the designation at one stage was Bangladeshi ship deserters or similar.

MR LLOYD:   Yes, although the particular social group is defined as people who are nationals of Bangladesh and the concern for the community is people who send money back to the community.

FRENCH CJ:   I understand that.

MR LLOYD:   Then the respondent was found to be a member of that group.  There was a law that made the Act of ship desertion an offence and it was accepted that the respondent had a well‑founded fear of being prosecuted under that law.

HEYDON J:   Do you accept that definition of the social group?  Do you accept that there is ‑ ‑ ‑

MR LLOYD:   We did not challenge it and we are not challenging it in this Court.

HEYDON J:   Is there a social group of Bangladeshi murderers or Bangladeshi drivers who are reckless?

MR LLOYD:   I could not say, your Honour.  I might have my doubts, but I could not say.

HEYDON J:   Why is there one of Bangladeshi ship deserters, et cetera?

MR LLOYD:   The Tribunal felt that there was one.  It was a finding of fact for the Tribunal.  We do not challenge that in these proceedings.  We cannot and we do not.  What we say is, to put it a different way, is that there is a process by which the Tribunal has to ask, is there a particular social group?  If there is, does the person face persecution by reason of their membership of that group and if that is by reference to a law, then, can the law be justified as appropriate and adapted to a legitimate national objective? 

Although often the Tribunal will decide whether or not there is a particular social group and stop there, but we say there is no error if what the Tribunal does is, in effect, say, “Well, there may be a particular social group, but I am going to knock you out at the second step which is even if there is a particular social group, this law is not directed at that.”  So we say that there is a spectrum of laws.  At one end of the spectrum there are laws that are clearly directed to targeting people in a group.  One might hypothesise a law – and in that sense, to use the language of Justice Gummow from Applicant A, that jointly condemns the group.  So a law that criminalises attending a Catholic church or synagogue would be of that character or to put it in particular social group terms, a law that criminalised attending Alcoholics Anonymous meetings might be something that was that, and that is clearly targeted. 

At the other end of the spectrum are laws that, say, prohibit murder and we say they are directed to conduct, clearly directed at conduct.  There may or may not be a particular social group of murderers, but the laws are designed to prevent conduct and in between that spectrum there is a range of different matters and it is a matter of characterising, as it were, the motivation or the objects of the law.  It is possible, we say, and that is all we have to say, it is possible and it is open to characterise a law as being directed to preventing conduct. 

So to put the face, as it were, the case against us, one of the – one example I would put would be a law that made it an offence for Commonwealth public servants to commit fraud on the Commonwealth.  We would say that although that, in a sense, is directed at a limited group of people who may or may not be a particular social group, it is not targeting them as Commonwealth public servants.  It is trying to stop conduct and the law is about the conduct and it can be seen in that way. 

To use one of Justice Perram’s examples, who obviously was in the majority against us, he said a law criminalising – a law against drug use, but if one posits a law and prohibits the use of heroin, we say even if there is a social group of regular heroin users, then the law still applies equally to a first time heroin user and so it would be at least open for a Tribunal to say, well, this law is not about harming or targeting or jointly condemning heroin users or regular heroin users, it is about trying to prevent a noxious conduct.

To address another of Justice Perram’s examples against the Minister’s position was he posited a situation of a law criminalising homosexual conduct.  If the law was defined in that way, homosexual conduct, whatever that might entail, if the law were addressed – sorry, focusing on the conduct practised by a recognised group, it would certainly be possible to say that that law should be characterised as being directed against that group, but we say the position may well be different if the law was not directed at per se homosexual conduct but rather at some form of conduct undertaken by both homosexual and heterosexual persons.  That would posit a more complex question and one would need to look at, for example, patterns of enforcement, were only homosexuals prosecuted, that kind of thing.  In this case the Tribunal did look to see that there was no selective enforcement.

Justice Perram at paragraph 52 on page 65 of the book considered that this matter was foreclosed by the decision in S395.  In S395, in one judgment of two Judges, Justices McHugh and Kirby, there is a passage that supports his Honour’s view, but in other judgments, in fact even in their Honour Justices McHugh and Kirby’s judgment, it was recognised that that was not a case in which any reliance was placed upon the law that criminalised certain conduct partaken by homosexuals and it was not put in that way.  Chief Justice Gleeson at paragraph 13, Justices McHugh and Kirby in paragraph 46 and your Honour Justice Heydon and Justice Callinan at 109 all indicated that that issue was not taken in that case and so we say, with respect to his Honour Justice Perram, that S395 does not foreclose that issue.

We go further and we say, even if S395 and what Justices McHugh and Kirby said in that case were binding, the position is different as between a particular social group such as homosexuals and a group comprised by Bangladeshi ship deserters.  Critically, the position with the ship deserters, one would expect, unlike perhaps conduct undertaken by homosexuals is a one-off act.  One does not anticipate that after having deserted one ship the person is going to keep going back and be a serial ship deserter and so we say that is an important distinction. 

Another is that at the time of the ship desertion the offender is not a member of the group.  So before you have deserted a ship, you are just an ordinary seaman.  You only become a member of the group, if at all, after you have deserted.  Another distinction between those cases is that the conduct of homosexuals might be seen as derived from innate human characteristics of those persons and so a law that targets that can much more readily be seen as targeting that group whereas ‑ ‑ ‑

FRENCH CJ:   The problem is the acceptance of the definition of the particular social group as effectively a group defined by conduct, is it not?  Although you say that is a matter of fact, you could not challenge it, well, there is always a question of whether the concept of a particular social group properly construed applies to that category of persons.

MR LLOYD:   We say if your Honour looks at a different hypothetical situation, if there was a particular social group of housewives who commit shoplifting, the law pertaining to shoplifting could still be characterised as not targeted at or jointly condemning housewives who commit – it is not targeted at them by reason of their membership of that group.  It is simply directed towards the conduct.  We say that there is a distinction that is available between conduct and membership of a group even if a feature of the membership of the group is one aspect of conduct. 

The other point to be made is Justice Buchanan’s decision is premised upon two bases and we respectfully adopt both of them.  On page 55 at paragraphs 26 to 29 his Honour, we say, correctly applies the authority of this Court in Applicant A to come to the conclusion which my client sought in this case.  One reason why we seek a grant of special leave is that both the majority and the minority sought to apply the same authorities of this Court and came up with different solutions and we say that that is itself a justification for having what is admittedly a difficult area clarified.  We say that that is correct, that distinction is a recognised one and is available.  Over onto page 56 in paragraph 32 his Honour noted that the law:

applies to seamen and apprentices generally on Bangladeshi ships . . . Bangladeshi seamen and apprentices on foreign ships.

So it is not a law which is directed solely to the particular social group of Bangladeshi nationals who are ship deserters.  So one is able to say, when you have a law that affects more than just the pure class, there is a step of characterisation as to whether the law is seen to be or can be properly characterised as being discriminatory against that class.  We say this case is different to, for example, Chen Shi Hai.  In Chen Shi Hai there was a situation where there was an issue about conduct but it was a different issue.  In that case, there was a ‑ ‑ ‑

FRENCH CJ:   It was the status of the child.

MR LLOYD:   Indeed.  The children were so‑called black children because they were born outside of the one child policy.  The law unambiguously imposed harm on those children.  It was done in order to direct or to prevent or to dissuade the conduct of the parents of having more than one child and what this Court said was that in a situation where the law is directed at the children and has direct effect on the children, the Tribunal should have found that there was persecution of the children.  We do not take issue with any of that.  In this case there is a law which is directed to the conduct of the perpetrator and we say that that is something which can be characterised. 

The legislation under section 91R(1)(a) precludes someone from being a refugee unless the essential and significant reason for the persecution is a Convention reason.  So even if one is able to say, well, in part this law is to prevent conduct and in part the law is to harm Bangladeshi ship deserters, the law itself envisages that there could be an assessment of that kind, and the Tribunal in this case applied that law expressly to find that the conduct was the essential and significant reason, not the ship deserting.

There is a second point in relation to the appeal we seek to make which is – if the Court turns to paragraph 55 – my client argued that the Tribunal had at least impliedly addressed the appropriate and adapted test and in rejecting that, Justice Perram, with whom Justice Moore agreed, said in paragraph 55 that it was necessary, that is his Honour’s words, in applying that to do a very elaborate number of questions and steps in doing that.  His Honour was able to reject our submission, which becomes clear in paragraph 57, because those steps had not been undertaken.  We say that the appropriate and adapted test does not require all of the elaborate steps noted in paragraph 55, and that is a second and separate reason for allowing a grant of special leave in this case.

FRENCH CJ:   What would the task of the Tribunal be, assuming the decision of the Full Court stands, matters remitted to it, with a writ of mandamus?

MR LLOYD:   It is likely to be reconstituted and that reconstituted Tribunal is likely to be free to consider the matter afresh.  I hazard a guess the first respondent will be saying that it should stick with the finding on particular social group, but we do not say that the Tribunal would be bound. 

In fact we would say the Tribunal is not bound to any factual findings of a previous Tribunal.

FRENCH CJ:   Yes.

MR LLOYD:   What we do say is that this does raise, and the reason why my client seeks a grant of special leave, is that it does raise a matter of general public importance of the construction of the refugee definition which obviously concerns the international obligations that my client is under.  My client considers and contends that the approach of Justice Perram is too broad because one gets to a position whereby, as soon as there is a law apparently of wide application which has an impact upon or affects a particular social group, in this case the Bangladeshi ship deserters but it could be housewives who shoplift or a social group of murderers or thieves, then it is necessarily in every case to go and do the elaborate kind of assessment of the law which Justice Perram has indicated in paragraph 55. 

Many countries have different views as to the seriousness of offences.  Some countries have capital offences for things that this country does not have.  We contend that the approach of Justice Perram is too broad and brings in that last stage in many instances where it is not required and where a Tribunal should be open to characterise the law as being directed to conduct and not jointly condemning a particular social group. 

FRENCH CJ:   Would you have a right of audience before a Tribunal on a remitter?

MR LLOYD:   Certainly not a right of audience.  There is capacity, as I recall, for my client, I think, to send material which is:

The Secretary may give the Registrar written argument relating to issues arising in relation to the decision under review.

FRENCH CJ:   So that could include characterisation of the particular social group and that could be debated again before the Tribunal?

MR LLOYD:   It could be, yes, your Honour.

FRENCH CJ:   Yes, thank you.  Yes, Mr Williams.

MR WILLIAMS:   The case turns plainly enough on the very particular social group found by the Tribunal, that is, as your Honour, the Chief Justice observes, a question of mixed fact and law and as cases such as Applicant A show, it is open to challenge.  Indeed, it is open to collateral challenge.  The federal magistrate asked each party at the outset whether there was a challenge to that decision and each party expressly said no.  Shoplifting housewives, burglars, murderers are all unlikely particular social groups and your Honours will derive little assistance in construing the other aspects of the Convention by reference to examples relating to those groups.

In a case of this particular social group as found all members of the particular social group which the Tribunal found are at risk of harsh and prima facie disproportionate treatment; disproportionate sanctions, five years in prison, very substantial fines, deprivation of livelihood, deprivation of property.  The Tribunal made no finding that persons other than members of the particular social group are subject to those sanctions.  The Minister submits, relying on an observation of Justice Buchanan, that one of the provisions, not the one applying to my client, does apply to non‑Bangladeshi seamen and apprentices working on Bangladeshi ships, but there was simply no evidence to suggest that non‑Bangladeshis ever work on Bangladeshi ships.  So there was no evidence and, in particular, no finding that persons other than members of the particular group are subject to the sanctions. 

So asking the question rhetorically, if all members of a group are subject to harsh and disproportionate sanctions and no other persons are, on what basis can it be said that the penalties imposed for ship jumping, to use the Minister’s term, rather than for being a ship jumper?  The Minister’s answer is that it is all just a question of fact.  He uses the term “characterisation” to suggest that it involves something other than alchemy or guesswork or coin tossing, but characterisation puts it too high.

On what basis is the characterisation to be done if all group members and no one else is at risk?  The answer to this may be found really in what the Tribunal did.  The answer is that a delegate or Tribunal can, in effect, just choose which view it prefers, and that is, in effect, what the Tribunal did here at page 12.  This is page 12, paragraph 67 of the Tribunal’s reasons.  In the first sentence it states the finding and cites Morato.  It then reminds itself of the observation by Justice Dawson that the distinction should not be taken too far and it then states the finding again in the last sentence of 67. 

The Tribunal gave no reason for that conclusion because, in truth, there is none.  If there is a valid particular social group of Bangladeshi ship jumpers, all of whom are uniquely subject to the risk of harsh and disproportionate treatment, there is no basis for distinguishing a sanction imposed for ship jumping from a sanction imposed for being a ship jumper.  Given that the law as far as the Tribunal’s findings go, targets all members of the group and only members of the group, it is clearly, in our submission, a law which discriminates.  The test applicable to all such laws has been described in this Court as settled.  We refer to Applicant S in that respect and the question identified there is whether the law is appropriate and adapted to some legitimate national objective.  While Justice McHugh in Applicant A did observe that:

The enforcement of a generally applicable criminal law does not ordinarily constitute persecution.

This is the first of the cases in the Minister’s bundle.  I am referring here to page 259 of Applicant A.  Page 258 was the passage that I referred to a moment ago, generally applicable criminal law.  Then at the top of 259, his Honour goes on to refer to groups that are:

the subject of sanctions that do not apply generally in the State . . . inherently suspect and requires close scrutiny.

Your Honours, there is no suggestion here that abandonment of employment without notice generally attracts sanctions in Bangladesh, still less the harsh sanctions applicable to seamen.  These sanctions applied and applied only, as far as the evidence showed, to Bangladeshi seamen.  Justice Perram’s approach found at page 60 of the book at paragraph 40, in our respectful submission, is entirely orthodox.  First, ask whether there is a valid group – this is at the foot of page 60 going over onto the top of page 61. 

Secondly, if there is a valid group – and your Honours will be aware that the law reports are full of cases in which groups have been sought to be defined by reference to laws of the country in question, Morato and Applicant A containing catalogues of such failed attempts.  If there is a valid group, ask whether the particular criminal law discriminates against that group.  If it does not, for example, because it does not apply to all members of the group or because it applies generally, that is the end of it.  Thirdly, if there is discrimination, apply the settled test in Applicant S asking whether the law is appropriate and adapted.

At issue here is the exceptional class of refugee application in which a particular social group has been found and found validly, as far as the issues in this Court are concerned, to have been defined by reference to something that all members of the group have done.  The case therefore is to be determined on the basis of the very particular social group found by the Tribunal.  That makes it inherently an unsuitable vehicle for elaborating some of the more difficult questions.

FRENCH CJ:   You accept that that issue could be re‑opened before the Tribunal on remitter?

MR WILLIAMS:   Subject to this Court’s orders and we do not seek any particular order.  Indeed, I believe that we would be precluded from doing so by a decision of the Court concerning the scope of remittal.  I think it might have been Wang.  The decision of the Court in Wang would prevent us from seeking an order for remittal to the particular tribunal member or a limitation upon remittal.  The authorities, however, also recognise that a group can validly be defined by criteria that includes something that its members have done and that laws of general application ‑ ‑ ‑

FRENCH CJ:   Mr Williams, I do not think we need to hear anything further.  Is there anything further you would like to say, Mr Lloyd?

MR LLOYD:   Just one thing, your Honour.  My friend said that the approach of Justice Perram was entirely orthodox.  I wonder if I could take your Honours to Applicant A, page 257 in the judgment of Justice McHugh.  There is a passage there at the bottom half of the page where his Honour is looking at this concept of when someone fears persecution “for reasons of . . . membership”.  His Honour gives emphasis to “membership” and then his Honour gives an example where he says:

Prisoners, for example, are arguably a particular social group.  If they are routinely beaten because they are prisoners, they may well –

not necessarily, but they may well –

qualify for refugee status.  But narrow the group to prisoners who refuse to obey prison regulations and the case for an applicant becomes so much harder of proof.  The applicant will have difficulty –

then two things, one –

in proving the existence of “a particular social group” –

and we rely upon “and” –

and in proving that the persecution (bashings) are “for reasons of . . . membership” of that group rather than for his or her refusal to obey the regulations.

We say that is Justice McHugh recognising, even with a very precise, particular social group like that, there would still be a question of this difference between whether it is for reasons of membership as opposed to conduct and so we say that Justice Perram’s approach is not unorthodox.

FRENCH CJ:   Thank you. 

The decision of the majority of the Full Federal Court in this case turned critically upon an unchallenged finding by the Refugee Review Tribunal that the first respondent was a member of a particular social group referred to as “Bangladeshi ship deserters or similar” and the Tribunal’s finding that the group is not defined by the operation of a Bangladeshi ordinance criminalising desertion. 

The points made by the Minister on his application are inescapably entangled with the definition of the particular social group of which the first respondent was found to be a member and the basis of that definition which was not challenged in the Federal Magistrates Court or on appeal to the Full Court.  The case does not therefore, in our opinion, provide a suitable vehicle for the grant of special leave in relation to the distinction agitated in the Minister’s submissions between persecution for what a person is as a member of a particular social group and persecution for what such a person does.  We are not to be taken as accepting the appropriateness of the characterisation of the particular social group in this case. 

Insofar as the application for special leave challenges the reasoning of the Full Court in relation to the question whether the Bangladeshi law was appropriate and adapted to a legitimate national end, that is a matter which will fall for consideration on remitter to the Tribunal. 

Special leave will be refused with costs.

AT 10.33 AM THE MATTER WAS CONCLUDED