SZBPQ by his next friend v MIMIA

[2006] HCATrans 249

[2006] HCATrans 249

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S255 of 2005

B e t w e e n -

SZBPQ BY HIS NEXT FRIEND

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, 19 MAY 2006, AT 2.34 PM

Copyright in the High Court of Australia

MR M.J. McAULEY:   If the Court pleases, I appear for the applicant.  (instructed by the applicant)

MR G.R. KENNETT:   May it please the Court, I appear for the first respondent.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr McAuley.

MR McAULEY:   Your Honour, there is one matter that I should draw to your Honours’ attention because it raises the possibility that this application may be redundant.  There is currently an application pursuant to what I understand to be section 48B and section 417 of the Migration Act 1958, which is with the Minister.

GLEESON CJ:   I am not sure why you are telling us this, Mr McAuley.  Suppose that is so.

MR McAULEY:   For this reason, your Honour, that if that application is successful there will be no point in this application.

GLEESON CJ:   Yes.  So why are you telling us this?

MR McAULEY:   I understand that the application may be dealt with by the Minister within a fairly short period of time.

GLEESON CJ:   Are you telling us this because you want us to put it twice in the Court’s list instead of once?

MR McAULEY:   No, your Honour.  What I do not want to happen is for there to be a situation where, because of some decision of the Minister possibly within the next few days or next few weeks, it is thought that from the applicant’s point of view we have wasted the Court’s time.

GLEESON CJ:   But you are not inviting us to do anything or fail to do anything on that account?

MR McAULEY:   No, your Honour.

GLEESON CJ:   You are just informing us of the fact?

MR McAULEY:   Yes, your Honour.

GLEESON CJ:   Thank you very much.  Yes, go ahead.

MR McAULEY:   Your Honours, could I also just say by way of caveat that despite the best efforts of our opponents this is not an application that substantially relies on Teoh’s Case. There are, effectively, three issues that are of importance. The first issue is this. Should the notion of persecution in sections 36 and 91R of the Migration Act 1958, together with the Refugee Convention and the Refugees Protocol, be interpreted having regard to the Convention on the Rights of the Child, an unincorporated human rights treaty, there will be no controversy that statutes must be construed – ought be construed, unless the contrary intention is clear so that they do not violate any recognised rule of law and that there is a distinction between incorporated and unincorporated treaties and that an incorporated treaty is part of the law of Australia.

Hence, Australian law must be construed in accordance with the incorporated treaty. Clearly the Refugees Convention and the Refugees Protocol have been incorporated into the Australian law by virtue of sections 5 and 36 of the Migration Act. Both those treaties, the Refugees Convention and the Refugees Protocol, are humanitarian treaties. Hence, sections 36 and 91R must be considered in accordance with those treaties. The applicant is to be regarded as a refugee if he has “a well‑founded fear of being persecuted” for membership of a particular social group.

One needs to go to the Vienna Convention on the Law of Treaties, in particular, Article 31 which requires that in interpreting a treaty there shall be taken into account:

the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose…

3.        There shall be taken into account, together with the context . . . 

(c)any relevant rules of international law applicable in the relations between the parties.

Hence, it is submitted that at least under international law, in interpreting the Refugees Convention and the Refugees Protocol, the Convention on the Rights of the Child is to be taken into account.  It is submitted that Australian law as to the interpretation of the relevant provisions of the Migration Act and the Refugees Convention and the Refugees Protocol ought be as follows, that the Migration Act and the Convention and the Protocol ought be interpreted consistent on the Convention on the Rights of the Child being an unincorporated but humanitarian treaty unless the Migration Act demonstrates a clear contrary intention.

The advantages of such an interpretation are that it is consistent with Australia’s obligations under the Vienna Convention, that it ensures that Australian law is consistent with international human rights law and it is consistent, thirdly, with respect for all law, namely, not merely the law of a polity but international law so that for those who take the view that there is an obligation to obey the law one is not left in this sort of double‑minded situation where the law of the municipality, as it were, is different and may be in conflict with international law.

As best I can tell, this issue has not been decided by the High Court, though clearly there has been a great deal of debate in recent times as to the relationship between international law and municipal law.  Moreover, this proposition is consistent with what I submit is the presumption of compatibility, namely, that ambiguities and obscurities in legislation ought be understood, consistent with Australia’s international obligations in unincorporated treaties and, similarly, the principle of legality that one should construe words in legislation in accordance with fundamental human rights. 

It is clear that the Refugee Review Tribunal did not take into account the Convention on the Rights of the Child.  In my submission, the Tribunal should have done so and should have addressed itself specifically to provisions of the Convention on the Rights of the Child in order to flesh out the concept of persecution and, in particular it is my submission that Articles 2, 24, 26 and 28 of the Convention on the Rights of the Child, which relate to discrimination, which relate to access to social services, education and health are matters which the Tribunal ought to have addressed specifically prior to coming to its determination as to whether or not the applicant in this case was the subject of persecution.

It is my submission that the suggested principle, namely, that the Migration Act and the Refugees Convention and Protocol be understood in the context of the Convention on the Rights of the Child is effectively a gradual proposition.  It allows for some relationship with international law, but is not a sweeping proposition.  It is my submission that that proposition is consistent with developments in thought in relation to human rights since the latter part of the 18th century. 

The second proposition that I put, which is of some significance and which is raised by this case, is that leaving aside the Convention on the Rights of the Child, in assessing whether the applicant was to be the subject of persecution, the Tribunal was bound to apply an understanding of what persecution is.  It seemed to draw some distinction between discrimination and persecution, but, in my submission, it should have addressed questions as to the:

standards of civil societies which seek to meet the calls of common humanity -

which is in Chen Shi Hai at paragraph 29, or denial of:

basic entitlements enjoyed by other children in the PRC and fundamental rights internationally enshrined in standards accepted as universal and basic –

which is in his Honour Justice Kirby’s judgment at paragraph 55.  Also relevant is Applicant S where there is a reference to “international standards” at paragraph 47 and “standards of civilised society” in Justice McHugh’s judgment at paragraph 83.

The reality is that if a child in Australia were denied access to free education, were denied access to Medicare benefits, were denied access to social security benefits, any person with common sense would regard this as not merely an abuse, but persecution if it were on the basis that the child were the second child of a family.  The error of the Tribunal is in failing to articulate in any sense the nature of the persecution.

The third matter which we raise which is of considerable importance is based on S395, with which your Honours will be far more familiar than myself.  The question is should the decision‑maker disregard, in my submission, the statutory test, persecution for reason of membership of a particular social group taking into account the likely and reasonable efforts of parents to avoid the persecution as far as the child is concerned?  Your Honours will recall from the reasons of the Refugee Review Tribunal that, in effect, the Tribunal said, “Look, the parents will look after this child and overcome the problems that the child might otherwise have, in particular the father, by working, bringing in an income, paying any fine and thereby obtaining access to free education, health care and social security”.

The difficulty about that is, as in S395, that it is the position of the person who is making the application that is relevant, not the position of the child’s parents.  Effectively, what the Tribunal failed to do was to disregard the statutory question and it made a series of assumptions as to contingencies which may or may not be borne out in life.  All of us have the experience of parents becoming ill, suffering disability, death, separation, et cetera.  The Tribunal has effectively said none of those things will happen in this case and the child’s parents, in particular the child’s father, will overcome what is really the effects of persecution.  Just because one seeks to avoid, even successfully, the effect of persecution, does not mean there is no persecution.

Those are questions of significance, certainly for the applicant in this case, but for applicants generally, particularly the many applicants who are in the same position as this particular applicant.  The first question is a question which in one way or the other has been raised and is perhaps the subject of controversy, even amongst the members of the High Court, in a sense and, put in the broader sense, the relation between international law and municipal law is of very great significance for Australia as a legal system in the future.

GLEESON CJ:   Thank you, Mr McAuley.  We do not need to hear you, Mr Kennett.

We are of the view that 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 are going to adjourn for a couple of minutes to establish the link to deal with matter No 11.

AT 2.49 PM THE MATTER WAS CONCLUDED