SZACN v MIMIA

[2005] HCATrans 382

[2005] HCATrans 382

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S107 of 2004

B e t w e e n -

SZACN

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 MAY 2005, AT 12.26 PM

Copyright in the High Court of Australia

MR R. NAIR:   May it please the Court, I appear for the applicant.  (instructed by the applicant)

MR M.A. WIGNEY:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

HAYNE J:   Yes, Mr Nair.

MR NAIR:   Your Honour, in response to the applicant’s supplementary summary of argument, the respondent has filed a supplementary summary of argument themselves.  I will briefly elaborate, therefore, on my supplementary summary, the reason being to emphasise that the respondent’s summary themselves indicate the public interest importance of having the special leave questions answered and I will refer particularly to our third special leave question and also suggest that from the respondent’s supplementary response, that the issue, in addition to raising the question of a constructive failure to exercise jurisdiction, also now appears to raise the issue of an excess of jurisdiction. 

Briefly, we say the Tribunal certainly did not dispute, in fact we say the Tribunal accepted, the Refugee Review Tribunal accepted that the applicant was subject to a risk, or had a well-founded fear, if I can phrase it that way although the Tribunal did not do it, did not challenge or dispute that the applicant may be arrested on false charges and may be prosecuted on false charges.  On country information it found, however, that the change in government meant that there was no evidence that the new government would seek to harm applicants such as him, or persons such as the applicant. 

Now, in response to our third special leave question that, in fact, to our suggestion that a finding that the present government would not seek – there is no evidence that it would seek to harm such as the applicant, that that was wholly inadequate to answer the question which was required, which is whether, in fact, the applicant would be afforded adequate protection or the present government was capable of affording such adequate protection to the applicant, and that is the question that needed to be answered.

I note that in the ninth paragraph of the respondent’s supplementary argument, the respondent replies as follows, and I will read it briefly:

A fair reading of the Tribunal’s decision reveals that the Tribunal found, in substance, that by reason of the change in government any fears held by the applicant were not well-founded because he would be provided with adequate protection by the courts in Bangladesh.

Now, what we say is this.  First, the question that the Tribunal should have addressed itself to and which it did not and by virtue of not doing found itself in a constructive failure to exercise jurisdiction was whether a threat to a person’s liberty – the threat coming from arrest or any consequent imprisonment thereof – was itself persecution as clearly, we say, prescribed by 91R of the Migration Act ‑ ‑ ‑

HEYDON J:   But the Tribunal found that it was not satisfied that there was a real chance that the applicant would be arrested at page 8, line 29.

MR NAIR:   Your Honour, yes.  I think what the Tribunal said was, if I with respect might say, would be arrested and prosecuted.

HEYDON J:   It says “and mistreated”.

MR NAIR:   Yes, “and persecuted”.

HEYDON J:   No, “mistreated”.

MR NAIR:   Sorry, yes, your Honour, “and mistreated”.  I would submit that the fair reading of that is you cannot treat that as a finding that he would not be arrested but you have to read it as a composite finding, he would not be arrested and mistreated and, therefore, not specifically that he would not be arrested.  The reason we say that – it is covered in my submissions, but if I might, with respect, take your Honour to the application book page 8, line 11:

I am satisfied that the Applicant was active in the Freedom Party.  He canvassed door to door and argued for their policies in meetings and on the streets.  As a result of this he claims that the Awami League government issued serious and false charges against him in 1996 or 1997.

The Applicant was able to avoid arrest and managed to leave Bangladesh in 2000, travelling on another man’s passport.

And then again at line 25:

I am not satisfied that there is a real chance that the Applicant will be falsely convicted of any charges he may face in Bangladesh.  I am not satisfied that he would be denied a fair trial on any charges he may face.

I note what your Honour has said but we say and we submit, as we have in our written submissions, that in view of all these findings or reasons given by the Tribunal, the only fair interpretation is that the Tribunal

accepted that there was a real chance he would be arrested but concluded that he would not be persecuted or mistreated, hence the phrase “arrested and mistreated” must be read, we submit respectfully, as a composite. 

If that is correct, if, as we submit, the Tribunal accepted that there was a chance he could be arrested and for a short while at the very least detained for the purpose of bringing him before the court, the argument or the suggestion that he was likely to be either set free by the court on the charges themselves or at least not convicted, either of them immediately, in my respectful submission, raise the following jurisdictional issue of broad general interest because that, in general terms, is saying that a Tribunal, notwithstanding that it implicitly at the very least made a finding that the applicant had a well-founded fear of persecution, may nevertheless find that Australia does not owe the applicant, such an applicant, a protection obligation or protection obligations because subsequently the Tribunal finds that persecution is likely to cease or to be brought to an end by other agents, in this case, the courts. 

We submit that that is not the question for the Tribunal.  That is very much in excess of the jurisdiction vested in the Tribunal and, as I said, I raise this issue because if that is the understanding of the respondent then we submit that there is an urgent need to correct this error.  Thank you, your Honours.

HAYNE J:   Yes, thank you, Mr Nair.  Mr Wigney, we will not trouble you.

In our opinion there are insufficient prospects of an appeal succeeding to warrant the grant of special leave to appeal in this matter.  It follows that special leave to appeal is refused and refused with costs.

Adjourn the Court.

AT 12.35 PM THE MATTER WAS CONCLUDED