NALZ v MIMIA

[2005] HCATrans 544

[2005] HCATrans 544

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S497 of 2004

B e t w e e n -

NALZ

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 AUGUST 2005, AT 8.59 AM

Copyright in the High Court of Australia

McHUGH J:   This is an application for special leave to appeal against the decision of Madgwick, Emmett and Downes JJ of the Federal Court, given on 20 December 2004.  Their Honours dismissed an appeal against the decision of a single Justice of that Court, confirming a decision of the Refugee Review Tribunal whereby the Tribunal affirmed a decision of the Minister’s delegate to refuse the applicant’s application for a protection visa.  Prior to the decision of 20 December 2004, the Full Federal Court had, on 17 February 2004, stood over the appeal and referred the case to the Registrar pursuant to O 80 of the Federal Court Rules.  Order 80 provides for the provision of pro bono assistance.  The Court took this course of action because it appeared to their Honours that the Tribunal’s reasons disclosed an arguable appeal point that had not been raised in the applicant’s submissions.  Ultimately, upon consideration of that issue, their Honours were satisfied that there was no such error, or to the extent that the Tribunal’s reasons disclosed such error, that issue had not been determinative of the Tribunal’s final decision. 

The applicant is a citizen of India.  He is a Tamil and a Muslim.  He claims to fear persecution on account of being wrongly regarded as a supporter of the Tamil Tigers (“LTTE”), and by reason of his religion.  While the Tribunal accepted his evidence in relation to incidents where the police took the applicant into custody and beat him, it found that this was in connection to supplying generators to an illegal organisation.  The Tribunal made no finding that the selling of generators or other equipment to Sri Lankan nationals was behaviour that expressed a political opinion, or which identified him with a particular social group. 

Madgwick J (in dissent) found that the Refugee Review Tribunal erred in finding that the applicant could avoid persecution in India by modifying his behaviour, that is, by ceasing to sell electrical appliances to Sri Lankans, so that he would not be mistaken for a member or supporter of the Tamil Tigers.  His Honour said that such a finding was inconsistent with this Court’s decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.

Emmett and Downes JJ distinguished the present case from Appellant S395/2002, on the basis that “there is no suggestion that the appellant fears persecution by reason of any opinion or belief that he holds ... There has been no suggestion that he is a member of a particular social group”.  Specifically, unlike the appellant in Appellant S395/2002, who was a homosexual, the present applicant could cease the activities which had created the basis for his persecution.  

The Refugees Convention does not say that only those who are persecuted because of an accurately perceived membership of a particular social group will receive protection.  Those who have persecuted the applicant in the past have been persuaded that he is a member of a particular group, namely the Tamil Tigers, and they have persecuted him on that basis.  It is unrealistic to say that if the applicant returns to his home in India, and simply stops selling goods to Sri Lankans, those perceptions will immediately evaporate.  Those types of perceptions last.  To this extent, the Tribunal committed an error of law.

However, that error is not determinative of the case because the applicant could reasonably relocate to a different area of India where his past connections would not be known.  In this respect, the Federal Court was correct in finding that the present case is distinguishable from Appellant S395/2002.  Special leave should be refused because an appeal, although arguable, would have insufficient prospects of success.

The application for special leave is dismissed.

Under the power conferred by r 41.10.5 we direct the Registrar to draw up, sign and seal an order that the application is dismissed.  I publish our joint reasons.

AT 9.00 AM THE MATTER WAS CONCLUDED