MZWYY & Ors v MIMIA & Anor

[2006] HCATrans 632

[2006] HCATrans 632

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M76 of 2006

B e t w e e n -

MZWYY

First Applicant

MZWYZ

Second Applicant

MZWZA

Third Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 NOVEMBER 2006, AT 12.27 PM

Copyright in the High Court of Australia

__________________

MR J.R. HAMILTON:   If the Court pleases, I represent the applicant.  (instructed by Goz Chambers)

MR W.G. GILBERT:   If the Court pleases, I appear on behalf of the first respondent.  (instructed by Australian Government Solicitor)

HEYDON J:   Yes, Mr Hamilton.

MR HAMILTON:   Your Honour, this appeal is about a matter that is of prime importance in the Migration Act as regards refugees and it is simply this:  when is a person assessed or how does the Tribunal and then courts in reviewing it, how do they assess that an applicant has a well‑founded fear of persecution?  This Court in Chan, Justice Gaudron said that you have to look at subjective and objective:  subjective when they arrive in the country presumably, what they have experienced in the country they have come from, and the objective factor is determined later when the decision is made.  She went as far as to say that depending on the subjective experience, even if the objective data suggested a fairly benign environment overseas, if the person had been through enough, then it should be judged on what a reasonable person in the applicant’s position would feel.  That was in 1989.

Judge Gummow in Eshetu in 1999, 10 years later, said the way it was expounded by her Honour was not the way the Court decided the matter in Chan and he also reaffirmed that it is a mixture of subjective and objective considerations.  The word “mixture” is actually part of that judgment.  Two years later Justice Gaudron again in Miah agrees that it was not the decision of the Full Court the way she expounded it in Chan, but she said nothing in that decision went against what she said and also said that nothing since Chan has gone against the way she has propounded the test.

Your Honours, it is put to this Court that the test is this.  If two foreign nationals from the same country apply to this country for a protection visa, if one is assessed as having experienced trauma or having had a well‑founded fear of persecution at the time they left their country and the other making similar claims that are not accepted, then – and what her Honour finds in Miah, it says that the person who has been found to have had a well‑founded fear of persecution subjectively may be entitled, or suggests they are entitled, to a lower hurdle as regards objective fears than somebody who has not.  It is submitted that takes into account very much the whole aspect of a mixture of subjective and objective. 

Your Honour, it is submitted what is happening in the courts below, Tribunal and courts below and right up to the Full Federal Court, is that while acknowledging that there are subjective and objective matters, the courts are saying there are two hurdles that have to be got over, but they are saying that if you fail at the objective level and it is not related to subjective, then you fail.  In this instant decision her Honour in her decision on page 58 of the application book, top paragraph, quoting the Full Court decision of the Federal Court from WAHK says that you can go straight to the objective.  Once you are satisfied that on the country information at the time you are making a decision that there is not an objective fear, there is not an objective ground for a finding of a well‑founded fear of persecution, you do not even have to consider the subjective.

Now, this produces the most anomalous result that refugees or anybody who wants to make application for a protection visa in this country need not detail anything at all about their experiences, nothing at all; just simply put it into the system, wait until the Tribunal comes along and try and present it with papers as to what the country information is saying about the current objective state in the country. 

Now, your Honour, it is submitted this is producing two very different results, obviously affecting the individuals concerned, and it is submitted that our international obligations under the Refugees Convention are very much better suited to the way her Honour – I am not aware of any other High Court – has set out the basis on which you judge.  You look at both, but the subjective can influence the objective.  The objective is assessed, but if someone has had trauma, and the ultimate in trauma might be imprisonment, torture, then they could well have a well‑founded fear of persecution to a lesser grade than somebody who has claimed they have been persecuted and that claim is not accepted. 

Now, there are two issues I wanted to mention before the Court this morning, your Honours, and that is the main one.  Now, there is a secondary one.  The applicant was found in this instance to have a well‑founded fear of persecution in that he was a member of MwM which was vocal in its opposition to the abuses of the President in Kenya, Daniel Arap Moi.  Now, it did transpire before the Tribunal decision that that President has been replaced with another and the organisation of which he was protesting from was disbanded.  I think that is correct.  But certainly he is not a member of – well, he is in Australia.

CRENNAN J:   There was a new President, I think, from late 2002.

MR HAMILTON:   Right, your Honour.  Now, the Law Society of Kenya put in a submission that is contained at pages 71 and 72 of the application book where it details and it says that although there has been a change in government there is still considerable abuse and nothing much has really happened.  Now, the submission that could have been made on behalf of the applicant was, if this person is a person who likes protesting – and I refer to not dissimilar facts in Dranichnikov, a Russian businessman who also said he was persecuted because he protested against corruption – if this person has done it in the past, they may well do it again.  The old regime is out, but the new one does not appear to be a great deal better.  If he protested, he would be in trouble again, or even if he did not protest, you could argue that he is being persecuted because he cannot speak out.

Now, that point was never made.  I submit that point was not made.  The Federal Court in this instance found that because she did not make it, it was accepted that it was fully made in the appeal in the Federal Court, but because it was not made at the Tribunal stage, it could not be considered.  Your Honour, the findings of this Court in this area as to whether something that is there possibly on the papers but was not actually made, is also – well, with the first point I have made, I am saying that the High Court is absolutely clear in its judgments and the Federal Court does not follow it.  Arguably the High Court in this instance has two slightly different formulations. 

In the case of Dranichnikov, the point that the argument that the applicant eventually wanted to rely on, the majority, a large majority, six to one, found that it certainly might not have been in the forefront, but it was there.  It was there right from the beginning and it had been put and on that basis it could be considered, the Chief Justice of this Court saying the fact that it had not been to the forefront was enough to exclude it.  So implicitly that would suggest that if you have not put the case, if you have not put something that you – and this is not talking about putting new material before the Court, just simply a new argument based on existing materials – Dranichnikov would suggest you cannot bring that forward and that would be against my client in this instance.  Now, that was decided in May 2003. 

A subsequent decision of the Full Court of this Court later than that, in Appellant S395 – and this was in December 2003 – it found in that case two men claimed a fear of persecution if they returned to Bangladesh and lived together because of the rules in that country.  The Tribunal did not find that anything had happened to them in the past despite their claims and so they had lived there for some four years in a relationship, which they presumably had done discreetly, there was no reason to believe it would not be done discreetly in future and, therefore, it did not activate any protection obligations from the country. 

Three of the Justices said no, but four of the Justices, while not saying that it was put, came to a conclusion that the Tribunal should have considered it.  So three have said it was not ever put and four have said – well, I am not aware that they have said one way or another.  A reading of the judgment does not suggest that they are saying otherwise, but they are saying it was not put but it is something the Tribunal should have considered.  It was there in front of them.

CRENNAN J:   But her Honour found in relation to this case that there was no factual basis on which an approach analogous to that in S395 could be pursued. 

MR HAMILTON:   Yes, your Honour, that was a finding and, in our submission, it is said it is totally analogous.  What we are saying is the point was never made that a new regime in Kenya for someone who was, I have used the expression, “a political activist”, could bring as much difficulty to them as a previous regime, but her Honour found that it did not make that point.  It was not made at the Tribunal.

CRENNAN J:   But her Honour also found there was no factual basis upon which you could approach it similarly to S395.  In other words, not only was the point not expressly made, but there was no factual basis upon which a court might act in relation to the point should it take the view that the Tribunal should take it into account.

MR HAMILTON:   Your Honour, it is submitted that the factual basis is the finding of the three Justices in S395 that the case that they eventually came to rely on and which decided the case was never put.  It was not put and to that degree it seems very much analogous with what happened in this case.  The three Justices said it was not put.  It is submitted that the judgment – the other four are not saying it was put as much as the argument in Dranichnikov was going on – yes, it was in there somewhere.  They are just saying that, all right, it was not put, but it was there for the Tribunal to make a finding on.  It was not argued, it was not put before the Tribunal, but it should not have let it stand at that. 

When the Tribunal found, “You have lived discreetly and that has kept you out of trouble”, four Justices, the majority, said you should have considered whether their being forced to live discreetly amounts to persecution, but that point was never made.  To that extent, your Honour, it is said that the cases are analogous. 

So the two points there, one more main than the other, and it is also submitted that for the purposes of granting special leave this is a case, even though it is not of a Full Court of the Federal Court, but it quotes, it uses all the precedents of the Full Court, and this may be a case that can be referred to Canberra for resolution in those two areas.

HEYDON J:   Thank you, Mr Hamilton.  We need not trouble you, Mr Gilbert.

In our opinion the reasoning of Justice Kenny in the Federal Court of Australia was correct.  There are no prospects of successfully appealing against her orders.  The application for special leave must therefore be dismissed with costs.

The Court will adjourn until Tuesday, 14 November 2006, at 10.15 am in Canberra.

AT 12.41 PM THE MATTER WAS CONCLUDED