SHBB v MIMIA

[2003] HCATrans 534

[2003] HCATrans 534

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A257 of 2003

B e t w e e n -

SHBB

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 2003, AT 9.18 AM

Copyright in the High Court of Australia

MR S.J. CHURCHES:   If it please the Court, I appear for the applicant, your Honour.  (instructed by Refugee Advocacy Service of South Australia Inc)

MR P.J. HANKS, QC:   Your Honours, I appear for the respondent.  (instructed by Sparke Helmore)

GUMMOW J:   Yes, Mr Churches.

MR CHURCHES:   If it please the Court, we submit that there are two principal issues which would attract a grant of special leave in this matter.  Firstly, the process of reasoning in the Tribunal with respect to whether a particular social group for the purposes of the Refugee Convention must be perceived or, on other wording, recognised by the particular society or nation in the context.

GUMMOW J:   Yes.  Now, before you get too much into that, what do you say about page 81 of the application book, paragraph 100?  You are said to have disowned this boy.  You now want to reclaim it?

MR CHURCHES:   Your Honour, far be it for me to suggest concepts of verballing, your Honour.  Our response to that is at page 92 of the application book.  You will see there, at footnote 3, we have set out at some length from our written submissions to the Full Court ‑ ‑ ‑

GUMMOW J:   Yes, thank you.  That brings us to this, I think, Mr Churches and Mr Hanks.  We are reserved in the matter of Applicant S, which we heard on 22 and 23 October in Perth.  That, as we understand it, raises this point you have just put to us.  Is it not, then, the proper course to stand over this special leave application pending the outcome in Applicant S?  Apart from being refreshed by your additional advocacy, why should we hear the same point twice?

MR CHURCHES:   Your Honour, we would submit only in riposte to that that there is a second issue that has been raised here – in a sense, it is raised in a negative way, but it lies behind the reasoning of the Tribunal and then the Full Court – which is the question of state protection or the failure of state protection.  This Tribunal’s reasoning – if we were to get up on the perception/recognition point, then the question of the failure of state protection comes alive, and we would submit ‑ ‑ ‑

GUMMOW J:   That is right, but if you do not get up on the first point ‑ ‑ ‑

MR CHURCHES:   Yes, that is true.  We would have to get up on the first point, quite so.

GUMMOW J:   That is why we are saying what we are saying.

MR CHURCHES:   To that extent, your Honour, we probably cannot advance the matter in the face of Applicant S having the wind on us.  They are ahead in the race.

GUMMOW J:   We will see what Mr Hanks says.  Does that seem a sensible course?

MR HANKS:   Subject to one observation, your Honours, and that is that the issue that my learned friend adverted to as the second issue, we would say, must necessarily have gone against his client.  That is the only point that we would make.  The so‑called persecution which was advanced – that is, by reason of the membership of this particular social group, by reason of being a young male or a boy without a guardian or a protector in Afghanistan – was vulnerability to the general insecurity in the country.  There is no suggestion of any discrimination against that social group. 

Perhaps I should make one qualification there.  There was one suggestion that he feared conscription, by reason of being a young male without a protector.  There is a finding of fact made by the Tribunal against that, that is, that such a fear was not well‑founded, currently.  It may have been well‑founded years ago, but at the time that the Tribunal was making its decision it was not well‑founded.

So, on that second point, we would think that even if there was an error in the identification of a particular social group, the persecution or the fear of persecution which was advanced could not qualify as persecution for the purposes of the Convention.  That would be our submission and that is why we would say the application ought to fail.

GUMMOW J:   Yes, gentlemen, having heard what has been said, we think the best course is for you both to keep an eye on the fate of Applicant S.  We will stand over this leave application to be restored on 14 days written notice after delivery of judgment in Applicant S.

KIRBY J:   Costs today will be costs in the matter when restored.

GUMMOW J:   Yes.

AT 9.24 AM THE MATTER WAS CONCLUDED