SZAOG v MIMIA

[2005] HCATrans 558

[2005] HCATrans 558

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S525 of 2004

B e t w e e n -

SZAOG

First Applicant

SZAOH

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 AUGUST 2005, AT 12.09 PM

Copyright in the High Court of Australia

MR C.D. JACKSON:   May it please the Court, I appear for the applicants. (instructed by Quantum Lawyers)

MR R.T. BEECH-JONES:   If the Court pleases, I appear on behalf of the respondent. (instructed by Clayton Utz)

McHUGH J:   Yes, Mr Jackson.

MR JACKSON:   Essentially, the case raises three questions. The first that is raised on the ‑ ‑ ‑

McHUGH J:   I thought you only had two in your special leave application.  Is there three, is there?

MR JACKSON:   Well, there are three questions that I need to address.

McHUGH J:   Yes.

MR JACKSON:   I am sure your Honours are familiar with the points of law raised, but the way I propose to handle it is to ask first - the first question that is raised by the respondent and by Justice Emmett is really, what was the claim that was actually before the Tribunal to determine and the second question is then, assuming that a conscientious objection to the war in Chechnya and, in particular, the illegal methods of the Russian military in prosecuting the war was actually before the Tribunal, did the Tribunal err in law and its understanding of the question that it had to ask? 

Finally, if the answer to both question one and two is yes, first, does Israelian pose a sort of insurmountable burden for the applicant and does the state of the authorities in other common law jurisdictions warrant further exploration of the subject by the Court?  Those are the questions I posed or that I see as being the questions raised on the application.

HEYDON J:   What is wrong with paragraph 40 on page 65 of Justice Emmett’s reasons for judgment?

MR JACKSON:   Well, your Honour is particularly referring to line 40 as it appears in the judgment:

It is by no means clear –

Is your Honour referring to:

It is therefore difficult to see why ‑ ‑ ‑

HEYDON J:   Yes, Justice Emmett says the point was not raised.  There is no reason to suppose it was raised, therefore it was not raised.

MR JACKSON:   Well, the reason to suppose that it was raised – first of all, the first answer to that, your Honour, lies in Justice North’s fairly careful reasoning on this point.  That is at page 51 and following.  Your Honour will see, particularly at line 40 – first of all his Honour outlines why he believes that the matter was before the Tribunal and at line 40 he reaches his conclusion:

I cannot agree with the conclusion reached by Beaumont and Emmett JJ that there was no finding that a claim in relation to conscientious objection to service in the army was made by the appellant.

Having immediately outlined the way in which the claim proceeded - immediately outlined the way in which the claim was raised on the appellant’s case.

HEYDON J:   The appellant said, “I dislike intensely this brutality in Chechnya”.

MR JACKSON:   Yes.

HEYDON J:   “I protest against it and therefore I fear persecution”.

MR JACKSON:   Yes.

HEYDON J:   That is a completely different thing from saying, “I object on grounds of conscience to serving in the army”.

MR JACKSON:   Well, could I approach your Honour’s question this way, and that is to ask your Honour to turn to page 21 of the application book and your Honour will see the claims that – one of the difficulties here is that the transcript at RRT is not before the Court, has not been before any of the courts.  However, one can take that when the Tribunal says that claims were made and draws some conclusions from them, that claims were in fact made.  The Tribunal says:

The applicant claims he is still subject to call up and the war continues.

It then appears that the Tribunal, as Justice North observed – and again, at line 36:

The applicant claims that he objects to the Chechen conflict and the Russian military methods of dealing with this conflict.

That is then followed by, I am leaving out the “whilst”, your Honour, but:

I accept the applicant has these beliefs –

So Justice North’s answer and my answer to that question is that, first of all, clearly the Tribunal clearly documents that the applicant raised those claims - one must assume that was at the hearing – and secondly, that the Tribunal then goes on to make findings in relation to those claims.  So that, in fact, the question really is whether the Tribunal is correct in the findings that it makes on those points and, with respect to Justice Emmett, it is not correct to say that the claim was not articulated, at least partially on that basis before the Tribunal.

McHUGH J:   But even if the points had been raised or were raised in some way, you have still to get over the Yusuf point, have you not?

MR JACKSON:   Yes.  If I could approach that question in this way, by taking your Honours to Sepet v Secretary of State for the Home Department [2003] 3 All ER 304 and in that book at page 133, line 30 – I will return to Israelian if I do not run out of time.

McHUGH J:   Yes.

MR JACKSON:   But in that book on line 30, first of all, the court clearly says:

It is plain that the convention has a single autonomous meaning –

and there the court is simply saying that the different countries should have regard to other countries’ decisions.  Then over the page, at 134, paragraph [8], near the bottom:

There is compelling support for the view that refugee status should be accorded to one who has refused to undertake compulsory military service on the grounds that such service would or might require him to commit atrocities or gross human rights abuses –

and that is the relevant part of that sentence.  Then a number of authorities from Canadian appellate courts and American appellate courts are cited in aid of that proposition.  I have provided copies of some of those decisions in the list of authorities.

Interestingly, the Federal Court authority that I have cited, Erduran v Minister for Immigration & Multicultural Affairs [2002] FCA 814, in that decision his Honour Justice Gray deals or discusses Israelian and does not see anything inconsistent with Israelian in the proposition that a genuinely held conscientious objection may amount to persecution for a Convention reason, even if it be that one is caught up only in laws of general application.

Your Honour will recall in Israelian that the Tribunal had specifically found that the objection was based on a fear of being shot and not a genuine fear.  The Canadian, American and English authorities that I have provided all call in aid the UN Handbook on Procedures and Criteria for Determining Refugee Status.  As your Honour will be well aware, this Court too has considered that to be a useful aid in interpreting the Convention.  I have provided a copy of that, but it is also extracted in my submissions and in a number of the authorities, but if I could take the Court briefly to the Handbook on Procedures and Criteria for Determining Refugee Status.

McHUGH J:   Does it add anything to what the courts have been saying for years and years in various decisions?

MR JACKSON:   Well, it says what Sepet says, your Honour, which is that if – particularly at paragraph – there is a detailed discussion about deserters and persons avoiding military service and, in particular, at paragraph 171 there is the obviously correct statement that:

It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. 

But that is followed by a passage relating to a military action:

condemned by the international community as contrary to basic rules of human conduct –

If I could take your Honours back to the dissenting judgment of Justice North in the Full Federal Court and, in particular, to the passage that he extracts from US country report, at page 55 of the application book.  That was material that was before the Tribunal.  This is at line 33 of page 55 of the application book.  Your Honour will see there, and there was another human rights report from earlier on that was in much the same vein, there is talk of:

purposefully targeted some infrastructure essential to the survival of the civilian population, such as water facilities or hospitals -

killing civilians:

executed at least 38 civilians . . . women and elderly men . . . 

“cleansing” of an area following a rebel attack -

So as his Honour observes fairly obviously, that is in breach of humanitarian standards and it was certainly – in my submission, there was ample material that this was a war that involved gross violations of human rights.

McHUGH J:   But the question that you raise really needs determination by this Court in a factual setting where the Court is able to make some findings or act on findings that the law, subject to the application, is one which would be condemned by the international community as contrary to basic rules of human conduct, punishment or desertion.  That sort of issue just does not appear anywhere in here and that seems to be because it is by no means clear that the appellant made any claim that he feared persecution by reason of being required to fight as a conscript in the Russian Army against Chechnya.  The question you raised, notwithstanding Yusuf, may be one that at some stage may need to be debated in this Court, but is this really a suitable vehicle for this Court in determining it having regard to the real doubts about whether or not the issue was ever raised?

MR JACKSON:   Well, all I can say to that is that the Tribunal appears to have been in no doubt that it was raised, and I return to page 21 of the application book.  Clearly, the Tribunal says that:

The applicant claims he is still subject to call up and the war continues . . . The applicant claims that he objects to the Chechen conflict and the Russian military methods of dealing with this conflict.

That much is accepted.  In Sepet and the other authorities it is suggested that that is not the end of the inquiry.  There was ample evidence that was before the Tribunal that could be before this Court and was considered by the Federal Magistrates Court and the Full Federal Court.  There is ample material that this was a very, very grubby war indeed and, in my submission, it cannot be that it is not a suitable vehicle simply because the Tribunal has foreclosed its consideration of the subject on what may be an erroneous view of a law of general application.

McHUGH J:   But what is now being done is something with which the Court has become very familiar over the years, a case where there is no such claim made in the original application, no such claim made by the

migration agent on his behalf in the submissions, and then at some stage a point is raised and it is said there is jurisdictional error because the Tribunal did not deal with it.

MR JACKSON:   If I could just say very quickly, perhaps the reason that has happened so much is because the Tribunal is not an adversarial system, lawyers do not generally appear and the consequence is that the Tribunal has a heavier burden than it would otherwise have.  But that should not mean that applicants who are not able to articulate their claim in the legally appropriate way are disadvantaged when factual claims are raised by the Tribunal, but because of the Tribunal’s understanding of the law, are not dealt with adequately by the Tribunal.  If the Court pleases.

McHUGH J:   Yes, Mr Beech-Jones.

MR BEECH‑JONES:   Yes, your Honours.  Your Honours, in my respectful submission, the application highlights the difficulty that perhaps arose in a similar way in Ibrahim of looking at something in a factual vacuum, a particular event or a circumstance - in Ibrahim it was a civil war; in this case it is said to be conscription - and then asking in a general sense, how does it fit within the refugee definition as opposed to having a properly articulated claim, findings made upon that claim, and then an analysis to see whether the case warrants any development of Israelian.

McHUGH J:   Well, what is put against you is that the point was raised, although not well, and therefore it was the Tribunal’s duty to investigate it thoroughly and to ascertain the facts relevant to it.

MR BEECH‑JONES:   Could I take your Honour – and the basis of that contention, as I understand it, your Honour, is what is set out at page 21.

McHUGH J:   Yes.

MR BEECH‑JONES:   Now, what is set out at 21 are two references, beginning halfway down the page:

The applicant claims he is still subject to call up and the war continues . . . The applicant claims that he objects to the Chechen conflict and the Russian military methods of dealing with this conflict.

What there is not in any of the material is any connection, namely, he claims that he opposes being called up because of his objection to the Chechen conflict and the methods of dealing with it.  With respect, that is the critical point.  The reason why this has come about can be understood when one has regard to all the other claims he made that were not accepted.  That passage where it says:

The applicant claims he is still subject to call up and the war continues -

is a reference to page 10 of the book, which is that part of the Tribunal’s reasons where it is reciting what happened in the hearing and, your Honours, at about line ‑ ‑ ‑

McHUGH J:   Well, the Tribunal rejected a whole lot of his claims, did it not, that while he was in the army he criticised the regimental command and he served as a reservist for six weeks and that his car was burned and there were a lot of ‑ ‑ ‑

MR BEECH‑JONES:   His case was, “While I was in the army I witnessed serious human rights abuses by the forces and then, in effect, I became a whistleblower and I was agitating about that”.  That is what his claim all the way was through.  At line 27 in the hearing, the Tribunal was putting to him – this is on page 10:

When put to the applicant that the Russian authorities have done nothing to prevent him returning to Russia –

he was seeking, “Well, where is my guarantee, am I going to be safe”, he said –

He is a marked man as he announced publicly what he had seen –

which was the event in Chechnya, which was rejected.  Then he wrote to the prosecutor and the president about corruption, and then it adds the single sentence:

He is still subject to military call up and the war still continues.

With respect, what that is saying is, “Well, because of the fact that I have been agitating about this event that I had seen, one of the things I may be exposed to is military call up.  What it also said is, what I had seen when I was in the army I objected to”, but he never linked the two together.  He never said, “I do not want to go back in the army because of what the army is doing in Chechnya”, and the next step in the argument, “and that I may be forced to participate in that”.

All the international authorities my friend refers to start with a claim in those terms and, with respect, in this case there is no such claim and what is set out at page 21 is the very antithesis - with respect, is not that claim.  What at page 21 is the Tribunal dealing with, after rejecting all his claims about being a whistleblower and about seeing events in Chechnya, the Tribunal wraps up and remembers that it has this extra assertion about his exposure to conscription or to being called up again.  With respect, that is why that is there, but what is missing ‑ ‑ ‑

McHUGH J:   The two of those sentences seem to be of very general statement rather than – that is the “it is not enough” sentences seem to be general statements rather than actually directed to this particular applicant.

MR BEECH‑JONES:   I am sorry, your Honour, I missed that.

McHUGH J:   The Tribunal says that “it is not enough that an applicant’s refusal” et cetera, et cetera.  It is not enough to found a claim.  They seem to be general propositions rather than dealing with the concrete submission ‑ ‑ ‑

MR BEECH‑JONES:   Claim that was made before it?

McHUGH J:   Yes.

MR BEECH‑JONES:   With respect, there is in these discussions in these authorities suggestion that there may be a difference between a person who opposes to being conscripted to some particular type of conflict that involves them participating in human rights abuses and what is said to be a generalised call up.  One might ask, the only significance of that fact is that if it is some particularly objectionable form of conflict that may be an extra fact that allows the punishment for refusing to be called up as perhaps being characterised as having a political opinion, or as being for reasons of political opinion.  That may be the case.

Some of the authorities, particularly the Canadian ones, do not discuss how one makes that causal link.  But in this case the starting point has to be a claim that he objected to Chechnya because of his objection to the war itself – sorry, he objected to being conscripted because of his objection to the war and his objection to what was occurring there, and that did not occur. 

Your Honour, in my respectful submission, the reason why this must fail at the outset is the first point my friend raised is that without a properly articulated claim that links the two, it really is an issue, as it were, in a vacuum and a consideration of whether the something that warrants the development of Israelian is not warranted.  Just on the second point, your Honour, we would submit that in any event the critical point in these conscription cases is to find some fact or factor or circumstance that warrants the characterisation of the punishment for someone for refusing conscription, or the forcible conscription as being for reasons of their political opinion. 

Your Honour will see references in those authorities to such statements of it could found a claim, but really, that really begs the question as to how can that characterisation of a punishment as being for reasons of their political opinion be made.  In Sepet, which my friend referred to, your Honours were taken to paragraph [8] of Lord Bingham’s judgment.  We would simply ask your Honours to go further to paragraph [23].  I think this is the fourth judgment in our bundle.

McHUGH J:   What page?

MR BEECH‑JONES:   Page 320 of the report.  At the end of paragraph [22] Lord Bingham refers to your Honour Justice McHugh’s judgment in applicant A about laws of general application, and then his Lordship goes on:

However difficult the application of the test to the facts of particular cases, I do not think that the test to be applied should itself be problematical.  The decision-maker will begin by considering the reason in the mind of the persecutor for inflicting the persecutory treatment.  That reason would, in this case, be the applicants’ refusal to serve in the army.  But the decision maker does not stop there.  He asks if that is the real reason, or whether there is some other effective reason.  The victims’ belief that the treatment is inflicted because of their political opinions is beside the point unless the decision-maker concludes that the holding of such opinions was the, or a, real reason for the persecutory treatment.

Your Honour, that is, with respect, where your Honours got to in Israelian and Yusuf and that is where the test must always come back to and the fact that the particular conflict may be one that the international community condemns may be a fact or factor that allows the treatment to be characterised in that way, but it could not be conclusive in any way.

I know your Honours have been taken to the handbook.  Can I just conclude by taking your Honours to paragraph 171, which my friend took your Honour to, which is the passage dealing with military action condemned by the international community.  This perhaps demonstrates that the handbook really does not help one in a particular case, because the paragraph ends:

is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could –

my friend’s case is “must” –

in the light of all other requirements of the definition, in itself be regarded as persecution.

What that, we respectfully submit, means at the end of the day one still has to find a connection between a Convention reason, political opinion.  In Applicant S it was social group, and the conscription into the army or the punishment for refusing to be conscripted.  So, your Honours, in my respectful submission, it is just in the absence of the proper claim, it is simply not the appropriate vehicle for the development of anything beyond Israelian.

McHUGH J:   Yes, Mr Jackson.

MR JACKSON:   Yes.  I return to this point.  On page 21 of the application book the Tribunal clearly articulates:

The applicant claims that he objects to the Chechen conflict and the Russian military methods of dealing with this conflict -

and it accepts that he has these beliefs.  It does not go further.  Your Honour said the next part is very general.  Well, that may be true, but that is because the Tribunal is basically explaining why in no particular circumstances would it be necessary to consider a claim further if it were a law of general application.  The Tribunal considers that the inquiry begins or ends with that finding that the law is a law of general application.

There will not be a case necessarily where one has a perfectly articulated claim for persecution based on a conscientious objection with all the possible detail that the Court might like.  But it simply does not make sense to imagine that the Tribunal at least considered that it was dealing with a claim where he had raised an objection to the Russian military methods of dealing with the conflict, and the Tribunal accepted that, and that he was subject to call up and that the war continued. 

Now, the objection to the Russian methods of dealing with the conflict is understandable in the light of the nature of the conflict, and there was ample material before the Tribunal of the nature of that conflict and the gross abuses of human rights that were occurring in the name of that conflict.  Now, it simply does not make sense to say, well, there is no causal link between that and the objection to fighting in the war, the objection to being called up.  He said that he objected to being called up.  It just does not make sense to imagine that there could be anything other than a causal link

between the two statements.  He objects to the nature and the conflict.  He objects to everything.

McHUGH J:   I know, but as I put to you earlier, even if you accept that the point was raised you still have to get over the Yusuf point and particularly what ‑ ‑ ‑

MR JACKSON:   Yes.  Really, in some ways it is not that easy to make sense of Sepet, with respect, in that on the one hand there is an unambiguous statement that refugee status should be accorded to one who has refused to undertake compulsory military service on the grounds that such service would or might require him to commit atrocities – unambiguous statement and then there is a discussion about cause.

The way that one makes sense of that statement and the other authorities is to look at the concept of real or effective cause and to say that the real or effective cause may well be, if you are punishing someone for not participating in a legal conflict, that the real or effective cause of their punishment may be their political belief that they should not fight in that conflict.

In essence, the question is, is the general law appropriate and adapted to the particular end and, if it is not, there has to be a real question as to whether the real or effective cause of the punishment under that general law is, in fact, the political belief that says, “I cannot fight in this war or condone this war”.  Thank you, your Honours.

McHUGH J:   Like Justice Beaumont and Justice Emmett in the Federal Court, we think there is a serious doubt as to whether the important question now sought to be raised was, in fact, raised.  But assuming that it was, given the material before the Court, we are of the view that an appeal would have insufficient prospects of success.  Accordingly, the application for special leave must be refused.

MR BEECH-JONES:   Your Honour, we seek costs.

McHUGH J:   Yes, it must be refused with costs.

AT 12.46 PM THE MATTER WAS CONCLUDED