SZBIS v MIMIA

[2006] HCATrans 678

[2006] HCATrans 678

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S422 of 2005

B e t w e e n -

SZBIS

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 DECEMBER 2006, AT 12.09 PM

Copyright in the High Court of Australia

MR R.W. KILLALEA:   May it please the Court, I appear for the applicant.  (instructed by Ardem Legal)

MS R.M. HENDERSON:   If the Court pleases, I appear for the Minister.   (instructed by Sparke Helmore)

GLEESON CJ:   Yes, Mr Killalea.

MR KILLALEA:   Your Honour, this application raises ‑ ‑ ‑

HEYDON J:   Your problem, Mr Killalea, that the Tribunal’s decision was based on three distinct findings.  You challenge one of those findings but not the other two and neither of the other two would be a satisfactory support for the decision of which you complain.

MR KILLALEA:   Yes, my friend makes that point, your Honour, if I might just anchor myself, and the points being, if I am correct, that the treatment the applicant received did not amount to serious harm and the treatment was not attributable to a Convention reason and that the improving political situation in Sri Lanka made it unlikely that he would be ill treated in the future.  We do press the second of those propositions.

In relation to the first one, that the treatment he received did not amount to serious harm, that finding was called into contention by Federal Magistrate Driver in the Federal Magistrates Court proceedings.  I will take your Honours to folio 30 of the application book and looking at paragraph 7 where he says that:

The decision of the RRT unfortunately does not make clear to what extent the factual claims of the applicant were accepted.

Paragraph 8 on folio 30:

It would have been helpful if the presiding member had stated expressly what factual claims the applicant had made were accepted and whether any were not accepted.  That was not done and the presiding member appears to have proceeded on the basis that the applicant’s factual claims should be treated as if they were true, whether or not they were true . . . 

The applicant’s factual claims set out on page 65 of the court book refer to him being arrested, beaten and detained for five days in December 1999, to having been detained again in June 2000, to having had property seized, and having been arrested and assaulted again in July 2000.  If those factual claims were accepted, then I cannot see how the presiding member could fail to determine that the applicant had suffered serious harm as defined in s.91R(2) of the Migration Act.  It did, however, remain open to the presiding member to find that the applicant had not suffered serious harm ‑ ‑ ‑

GLEESON CJ:   “For a convention reason”.

MR KILLALEA:   “For a Convention reason”, thank you, your Honour.  So Federal Magistrate Driver, although one could reasonably anticipate that he would have found that if he had decided the question that there was serious harm in terms of the statute, he based his judgment on the fact that there was no serious harm for a Convention reason.  When the matter went before her Honour Justice Stone, her Honour supported implicitly that finding of the magistrate.  I will take your Honours to folio 42 and paragraph 13 at line 48:

I agree with the concerns expressed by the Federal Magistrate for the reasons articulated by his Honour.  However, I also agree with his Honour that it was open to the Tribunal to decide on the basis of its assessment of the appellant’s claims and the independent country information that the appellant’s experiences were not attributable to a Convention reason.

Now, the draft notice of appeal your Honours will find at 47.  The applicant says that therein her Honour erred in agreeing with what his Honour the Federal Magistrate had found.  Now, if this Court was to find that her Honour erred on that particular point of whether or not there was harm attributable to a Convention reason, then her Honour was wrong in the Federal Court and the matter in the normal course would revert to Federal Magistrate Driver.

He would then have this Court’s judgment to the effect that he was wrong in relation to whether or not there was harm for a Convention reason and his Honour Federal Magistrate Driver, if it went back to him, would be in the position that he would then have to address the issue of serious harm and, as he has already indicated, I think we could surmise that he might well find that there was harm to the requisite level.  So if this Court was to let this matter go forward and determine that there was ‑ ‑ ‑

GLEESON CJ:   That is a question of fact, is it not?  Whether the harm was for a Convention reason is a question of fact, is it not?

MR KILLALEA:   No, with respect, your Honour.  Whether the harm ‑ ‑ ‑

GLEESON CJ:   What was the error of law made by Justice Stone or Federal Magistrate Driver in concluding that it was open to the Tribunal to find that there was not serious harm for a Convention reason?

MR KILLALEA:   If I can focus on the Convention reason part of that, your Honour?

GLEESON CJ:   Yes.

MR KILLALEA:   The findings of the Tribunal are summarised by the Tribunal at folio 17 and the number of dot points there.  The second of those dot points covers the issue of harm.  The third one is that:

the applicant is not in fact of pro‑LTTE –

and if I can make it simple, a pro-Tamil –

opinion and has provided the authorities when asked with information about his Tamil contacts -

Now, from the second dot point one knows that the Tribunal has accepted that this man did suffer harm and, if one takes it, mindful of the difficulties alluded to by Federal Magistrate Driver, if one takes it that he was detained on three occasions, one of them for five days, one for two days and one for a day, he was beaten on two of those occasions, he was questioned about Tamil contacts on two of those occasions, then the question is begged as to how could you form the view, how could you make the conclusion he is not in fact of a pro-Tamil opinion because he has provided the authorities, when asked, with information about Tamil contacts, because he has been asked in that particular context, the being beaten while detained over three periods for a total of eight days.

That sounds in legal error as a misconception of the law.  I will take your Honours to a decision of this Court in Vetter v Lake Macquarie City Council Case.  Your Honours will have that at tab E of the authorities.  If I can take your Honours to paragraph 25 of the joint judgment of your Honour the Chief Justice, Justices Gummow and Callinan:

In his speech in Edwards (Inspector of Taxes) v Bairstow Lord Radcliffe identified an error of law as arising if “the true and only reasonable conclusion contradicts the determination”.  Mason J (with whom Gibbs, Stephen, Murphy and Aickin JJ agreed) discussed the matter comprehensively and stated the law on this topic in this country as follows in Hope v Bathurst City Council.

If I could take your Honours to the top of 451:

Where the factum probandum –

Which is the ultimate fact in issue –

involves a term used in a statute, the question whether the accepted facta probantia –

which are the facts adduced to prove or disprove that ultimate fact –

establish that factum probandum will generally – so far as I can see, always – be a question of law.’

So the proposition that the applicant puts before your Honours is this, that when one looks to the acceptance by the Tribunal implicitly that this man had been imprisoned for a total of eight days on three occasions, that he had been assaulted and questioned about Tamil contacts ‑ ‑ ‑

GLEESON CJ:   It is interesting that, because in these applications people usually set out to demonstrate the reasonableness of their apprehension of future harm for a Convention reason by describing what has happened to them in the past, the inference being that if they are sent back the same will happen in the future, there is a tendency to overlook the fact that the ultimate question is a question about what will happen in the future, not a question about what has happened in the past.

Now, here what has happened to him in the past, as I understand it, is that he has been investigated for possible pro-Tamil sympathies and in the course of the investigation suffered harm, but he seems to have emerged from the investigation without being subject, according to the findings, to continued suspicion of pro-Tamil sympathies.

MR KILLALEA:   Well, that essentially is the finding.

GLEESON CJ:   The ultimate question that had to be asked, the ultimate question was not what has happened to him in the past, but does he have a well‑founded fear of persecution if he goes back?

MR KILLALEA:   Well, if it is the case that, in fact, he was detained and assaulted because of an imputed pro‑Tamil sympathy ‑ ‑ ‑

GLEESON CJ:   No, because of suspected.

MR KILLALEA:   But if it were the case, if the relevant body was to be satisfied that he was, in fact, imputed with a pro‑Tamil political opinion, then, when you look to how the Tribunal approached the question of risk in

the future, the Tribunal did not approach the question of risk in the future as if he were in the past imputed with a pro‑Tamil political opinion.  I will take your Honours to folio 16, a part of the Tribunal’s decision, and at about line 43, the last four lines:

The Tribunal finds it implausible, taking account of the applicant’s testimony and of the country information cited in this finding including the continuing process of Tamil negotiations with the government, that any action against him as a journalist would be taken on his return.

Well, it may well be that when you hold the position, as the Tribunal did, that he was not imputed with a pro‑Tamil political opinion and that he was only a journalist, then it may be that in future as a journalist he will not suffer in the way he has in the past, but there is no consideration there of the risk to him of harm accruing if, in fact, he was in the past imputed with a pro‑Tamil political opinion.

So to answer your Honour’s question on that third element as to how does one deal with the question of future risk, I simply submit that the Tribunal has not dealt with a future risk in the context of a finding that ultimately be made that he was, in fact, imputed.  Those are my answers to your Honours’ question on those three difficulties and the applicant is then left with the one telling point against him and that is that he has been found not to have an imputed pro‑Tamil political opinion, but the applicant’s submission to your Honours is that that finding, in the context of findings of detention and assault, was not open to the Tribunal.

In terms of error of law the Tribunal misconceived the law in the sense that is articulated by this Court in the Lake Macquarie Case and that the true and only reasonable conclusion which was open on the evidence accepted by the Tribunal was that he did have an imputed pro‑Tamil political opinion.  Those are my submissions, your Honour.

GLEESON CJ:   Thank you very much, Mr Killalea.  We do not need to hear you, Ms Henderson.

We think there are insufficient prospects of success of an appeal in this matter to warrant a grant of special leave.  The application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 12.24 PM THE MATTER WAS CONCLUDED