SZADC & Ors v MIMIA

[2004] HCATrans 514

[2004] HCATrans 514

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S11 of 2004

B e t w e e n -

SZADC

First Applicant

SZADD

Second Applicant

SZADE

Third Applicant

SZADF

Fourth Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 2004, AT 2.23 PM

Copyright in the High Court of Australia

__________________

MR S.C. CHURCHES:   If it please the Court, I appear for the applicants.  (instructed by the applicants)

MR J.D. SMITH:   If it please the Court, I appear for the respondent.  (instructed by Sparke Helmore)

McHUGH J:   Yes, Dr Churches.

MR CHURCHES:   Your Honours, the special leave point here revolves around the importance of determining the correct particular social group because the Tribunal in this case has glossed that matter entirely, and that is apparent from the way the Tribunal has dealt with the matters set out on page 21 of the application book, where at about line 23 the Tribunal says:

I accept that they –

that is, a group of standover persons –

extorted money from the Applicant and her husband but there is nothing to suggest that they regarded the Applicant and her husband as anything other than suitable victims from whom they could extract money –

and so forth.  Now, the problem there is that the issue of correct social group or particular social group, has been run into the problem of determining the reason for particular persecutory behaviour, so it is a double‑barrelled point, revolving around correct particular social group.

Now there is no question that the principal claimant, who is the wife in this family, has consistently said that she was involved with the Liberation Tigers, and that is apparent in the application book at pages 7 and 8, where from line 23 on page 7 onwards, she consistently talks about having worked for the Tigers, she assisted the Tigers and so forth, and that goes on over page 8 at lines 13 to 17.  So the nature of the particular social group, those who are implicated as having been involved with the Liberation Tigers is clearly the basis of her claim.  Now, what has happened ‑ ‑ ‑

McHUGH J:   But is not your difficulty that even if you are right about the definition of the social group, it just simply does not overcome the Tribunal’s finding based on the applicant’s credibility that she did not have a genuine fear of persecution.

MR CHURCHES:   Your Honour, we ‑ ‑ ‑

McHUGH J:   Perhaps what distinguishes this case from Dranichnikov, his account was accepted.

MR CHURCHES:   Yes, we submit, your Honour, though, that if the analysis had been performed correctly here, that despite those other findings, nonetheless, here was an example of accepted, dare we say, persecutory behaviour, the extortion of money, which the Tribunal says was simply – it does not use these words, but it is tantamount to saying this was simply a criminal act.  Some standover men say a woman, a man out of country, they are in India and they are Sri Lankans, we will extort money from them, and we will do it by saying, we will dob you in to the authorities as a Tamil Tiger associate.  And that is simply an extortion, says the Tribunal, and we say, not so.  The point of connection, the persecution for that connection in the Convention wording is not just this is a random criminal act or any criminal act.  It is surely a criminal act, but that is what Lord Hoffmann was getting at in Shah’s Case, and we put Shah’s Case in the first two pages of the small bundle which I hope the Court has.

McHUGH J:   Yes.

MR CHURCHES:   And at page 2 of the bundle, Lord Hoffmann in his speech there sets out what I think is now a quite famous analysis, using the analogy of a Jewish shopkeeper in Germany who is roughed up and beaten up and driven out of business by competitors who are themselves motivated by the desire for an advantage in commerce, but they are able to get away with it.  Their point of leverage is that the state, being Nazi and anti-Jewish, will let them perform the way they do.  Lord Hoffmann says that is a Convention related situation because surely the acts are, on the surface, simply criminal acts.  There is a beating up, there is a driving over prisoners, assaults, but behind it all, says Lord Hoffmann, clearly lies a Convention reason and we submit here that once the Tribunal has said at page 21:

I accept that they extorted money –

well, there is the criminal act, but it is not, in our submission, simply a criminal act.  It is a criminal act attached to the fact that the husband and wife were identified.  Now that is at page 10 of the book at about lines 12, 13:

the Applicant said that while they were in India some members of the EPRLF or the Eelam People’s Democratic Party (EPDP) had identified her and had demanded that they pay them money or they would inform the Indian police that they were [Liberation Tamil] members.

Now, my point is the concept of identification.  This is not just, here is a husband and wife out of town and there is more of us than them, and we will demand money.  It is by process of reference to who they are.  She is known to have been associated with the Tigers and they say, this is our point of leverage.  Hand over the money or we go and tell the Indian Government, which is hand in glove with the Sri Lankan Government - there is an Indian peace‑keeping force, “So you are a particular social group, supporters of the Tigers, give us the money or you get dobbed in”.

CALLINAN J:   Dr Churches, can you remind me what the Convention says about passage through other signatory countries to the Convention, because Italy is a signatory to the Convention and your client lived there but chose to come to Australia.

MR CHURCHES:   Yes, your Honour, the ‑ ‑ ‑

CALLINAN J:   Passed through a signatory country and made no application for a protection visa or refugee status there.  I thought the Convention said that you should make application in the first country that you come to.

MR CHURCHES:   Yes, my understanding, your Honour, is that the applicant and husband told the Tribunal that they were not aware that Italy ‑ ‑ ‑

CALLINAN J:   I know and they were rejected on that.

MR CHURCHES:   Yes. 

CALLINAN J:   I know they said that but they were rejected on it.

MR CHURCHES:   Yes.

CALLINAN J:   I do not understand but it tends to be the position in a number of cases that the applicants pass through other countries which are signatories and nonetheless they are treated as if this was their first landfall, as it were.

MR CHURCHES:   Yes, I am aware that is quite a common factual situation, but perhaps my friend has information on that.

CALLINAN J:   I do not understand why it is so.

MR CHURCHES:   I am not sure of the law as to whether it is definitively against – in fact, I would submit it is not, given that there are situations where we know people have made landfalls, for example, on their way to Australia.

CALLINAN J:   But it is a different thing if it is not a signatory country.  I do not think Indonesia is a signatory to the Convention, is it?

MR CHURCHES:   I do not know, your Honour.

CALLINAN J:   I am not altogether sure that is not relevant.

MR CHURCHES:   Yes.  Your Honours ‑ ‑ ‑

CALLINAN J:   Surely, somebody has a copy of the Convention, do they not?  It is in the Act, anyway, is it not? 

MR CHURCHES:   I think the Act merely incorporates it, your Honour, I do not know if it sets it out.

CALLINAN J:   Maybe it does not set it out.  All right, well, do not worry.  You proceed ‑ ‑ ‑

MR CHURCHES:   Your Honours, that is the nub of - the submission here is that a particular social group, having been identified by the history as put forward by the applicant wife, for the Tribunal to gloss over that when it comes to a criminal act which we submit, is directly related to the membership of that particular social group - the Tribunal accepts that it actually happened, its specific words there, “I accept” that the extortion occurred.

It is at that point that we submit that this is a glossing that is unacceptable, to take away from the claim in respect of that particular social group, that certainly much else of what was put on by the applicant was not believed, but this part was, and it is inappropriate, in our submission, to simply say, a criminal act and then not to seize the point that Lord Hoffmann raised in Shah to say, yes the criminal act is itself encompassed within breach of the Conventional standards.

Your Honours, I think that really is – it is a short point but that is the specific portions of the Tribunal’s work at page 21 and at page 10 where the identification is made by reference to the particular social group.  That is our submission.

McHUGH J:   Yes, the Court need not hear you, Mr Smith.

The Court is of the opinion there is no reason to doubt the correctness of the judgment in the court below.  In those circumstances, the application must be dismissed with costs.

MR SMITH:   Your Honours, the respondent does not seek costs against the third and fourth respondents who are minors.

McHUGH J:   No.  The application is dismissed with costs against the first applicant.

MR SMITH:   If the Court pleases.

McHUGH J:   The Court will now adjourn to reconstitute.

AT 2.34 PM THE MATTER WAS CONCLUDED