SZBZP v MIMIA

[2006] HCATrans 623

[2006] HCATrans 623

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S202 of 2006

B e t w e e n -

SZBZP

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 NOVEMBER 2006, AT 2.01 PM

Copyright in the High Court of Australia

MR A.N. SILVA:   If the Court pleases, I appear for the applicant.  (instructed by Silva Solicitors)

MR S.B. LLOYD:   If the Court pleases, I appear for the respondents.  (instructed by Clayton Utz)

GUMMOW J:   Yes, Mr Silva.

MR SILVA:   Your Honours, there are two main issues for consideration in this special leave application.  The main one deals with the construction of section 91R of the Migration Act and the second one involves duty to inquire.  About the first one I shall first state the principle that we ask this Court to apply in this case.  That principle is this:  where the harm or detriment found to exist by the Tribunal necessarily falls within the phrase “serious harm” as contemplated in section 91R of the Migration Act a contrary conclusion would be an error of law.  This principle, your Honours, is derived from a general principle in Vetter v Lake Macquarie City Council in which ‑ ‑ ‑

GUMMOW J:   Yes, we are familiar with it.  We decided it.

MR SILVA:   Yes, your Honour.  Where the facts as found necessarily fall within the description of a word or phrase in the statute or necessarily falls outside it, a contradiction is an error of law.  The reason why it should apply here is threefold.  Firstly, the courts below said that the finding that the facts do not fall within the phrase “serious harm” was startling.  It was said by the Federal Magistrate, it was also endorsed by Justice French in appeal sitting as a single judge, and also there was a reference by the Federal Magistrate to a decision of Justice Wilcox who reviewed the earlier Tribunal’s decision as the primary judge.  So, therefore, there was a unified voice – each of the three judges say that that finding was startling.  That is the first line of argument, your Honours.

Secondly, his Honour Chief Justice Mason said in Chan – and, again, what his Honour said there was repeated in Guo – what his Honour said there was that prima facie interrogation, detention and exiling would constitute serious harm unless those actions are explained in such a way they take a different character.  So that is the second argument from our side. 

The third one is the construction of the words of the statute itself.  Section 91R(1)(b) talks about “serious harm”.  The serious harm found by the Tribunal in this case is firstly on the first instance the applicant was detained and interrogated for one month, the applicant was beaten, the applicant was denied food, clothing and water; and on the second instance the applicant was detained for three months and interrogated.  These findings have been accepted by the Federal Magistrate. 

So if we look at the words “serious harm” in section 91R(1) it is going to be difficult to say that this harm does not fall within 91R(1) and, more specifically, if you look at section 91R(2)(c), “significant physical ill‑treatment” and this harm found to exist should fall within that.  Therefore, the findings by the courts below that they were only finding of fact is, with respect, wrong and it should have been held they were findings of law which will lead to jurisdictional error. 

There might be some issue as to when section 91R was brought in whether there was any raising of the bar as to what is meant by “serious harm”.  As I have set out in my authorities, your Honours, in NBFP v Minister for Immigration and Multicultural and Indigenous Affairs there was an analysis of this issue and it was held there that there was nothing to show there was a raising of the bar but only 91R(2) provides specific examples of 91R(1).

There also might be an issue as to whether 91R addresses future harm and how could it be that an error of law dealing with a finding about the past harm would affect the applicant’s entitlement.  However, the way the Tribunal make their decision is this.  The Tribunals look at the past harm and make a finding as to which aspects of the harm they accept and then they consider whether that would constitute serious harm and they flip over and make a decision about the future harm.

What they do not tell us is that when they assess the past persecutions they are automatically telling themselves, if this particular harm takes place in the future, would that be persecution?  That is the process they are going through, but they do not put it in writing, but what they do is when they make a finding about the past persecution they flip over and make a finding abut the future.

GUMMOW J:   Did Justice French have submissions put to him about 91R?

MR SILVA:   Yes, your Honour.  Your Honours would see the decision of Justice French on page 58.

GUMMOW J:   Yes.

MR SILVA:   His Honour does not specifically mention anything about that discretion as such.

CALLINAN J:   That would be because, as Justice French pointed out, in paragraphs 28, 29 and 30 on pages 48 and 49, the second Tribunal’s factual findings were against most of the matters relied upon by the applicant.

MR SILVA:   Your Honours, with respect, if you look at the decision of the Tribunal, the Tribunal made findings basically based on two aspects.  One is whether there was serious harm and the second based on the country situation.  Those are the two main aspects.  So if there was an error in dealing with these two aspects, then that would be ‑ ‑ ‑

CALLINAN J:   Justice French points out that:

The second Tribunal considered the appellant’s claim that he was able to leave India –

the basis upon which he claimed he could leave India “was unconvincing”.  The finding that he was in fact unhindered and might well have been hindered if he had been doing the things he claimed is tantamount to a finding that his claims were not true or were unpersuasive.

MR SILVA:   Your Honour, that finding says that when the applicant left India he was not sought by the authorities, but then the Tribunal made a finding that if the applicant goes back he would back again start helping the LTTE.  So, therefore, when we look at the future harm, that finding that when he left India he was not sought by the authorities would not be a major issue, with respect.

CALLINAN J:   What you are really saying – and I do not know whether the Act contemplates this or, indeed, the Convention itself – is that a person is entitled to go back to country A in order to ferment from there rebellion in country B.  I am not sure that the Convention contemplates that people should be given asylum on that basis.  “If you don’t give me asylum, I am going back to India and I am going to cause trouble in relation to Sri Lanka from India.”  It is a rather unattractive prospect, is it not?  And in doing that inevitably commit offences according to Indian law.

MR SILVA:   Your Honour, with respect, we are looking at the findings of the Tribunal and the Tribunal says, looking at the evidence ‑ ‑ ‑

CALLINAN J:   I am looking at the Convention and the Act now and looking at what is persecution.

MR SILVA:   Your Honour, we are not deciding on the facts but, with respect, we are deciding on what the Tribunal found and, with respect, this Court is not looking at the basic facts and deciding on the facts.

CALLINAN J:   I was saying to you the basic facts have been decided against you.

MR SILVA:   Your Honour, that is why, with respect, I am pointing out to you the finding made by the Tribunal was if this person goes back from what he says, I believe he is going to start helping the LTTE, so that is the finding, your Honour, with respect, we have to go by.  So if that finding stands, then when the applicant left the country whether he was sought by the authorities would not be a major consideration, but the consideration would be if he goes back and then started helping the LTTE would he be in danger.  That is the question, your Honour, with respect, that has to be decided.

GUMMOW J:   Is there anything else you want to say?

MR SILVA:   Not about that issue, your Honour.  I would wish to look at the issue two, your Honour, if your Honours would think it is appropriate.

GUMMOW J:   You take your course.

MR SILVA:   Yes, your Honour.  The second issue, your Honours, dealing with duty to inquire and I have formulated the principle that should apply and it might be a bit long.  I might hand over a copy of that, your Honours, to make it easier for me to explain.

GUMMOW J:   Has Mr Lloyd seen this?

MR SILVA:   Yes,…..  Your Honour, our complaint is this ‑ ‑ ‑

GUMMOW J:   Was this complaint made to Justice French?

MR SILVA:   Yes, your Honour.

GUMMOW J:   Where does his Honour deal with it?

MR SILVA:   Your Honour, I am sorry, this complaint was not put in this specific way.  I apologise for that, your Honour.  How it was put was – it is very much different from the way I put it here because there was an issue of particular evidence involved, therefore, it was not put in specific terms.  The issue here is this, your Honour.  There were three pieces of information that the Tribunal had.  Two pieces of information were rather old.  There was only one piece of information and that was a bit obscure and not clear that the Tribunal completely misunderstood that.

Now, of the other two pieces of information one is called Timeline, BBC.  Obviously it is something called Timeline, BBC.  It is constantly updated.  So at the time of the decision the Tribunal did not update this piece of information.  It used very old information.

GUMMOW J:   Now, you appeared for your client before Justice French?

MR SILVA:   That is correct, your Honour.  So we are saying the Tribunal decided the applicant’s case mainly saying that the country situation is normal, based on one brief obscure piece of information and not updating another piece of information it had, where the applicant clearly told the Tribunal peace talks are broken, and the applicant clearly told the Tribunal peace talks are broken.  All the information shows that – the country information shows that the peace talks are broken and the Tribunal got it wrong and the Tribunal did not care to inquire into it.

I mean, as to duty to inquire, your Honours, now in SGLB it was held that there was no duty to inquire, but the situation here is different.  There it was the applicant’s request to inquire into certain things.  Here it is the Tribunal that is using the country information.  If the Tribunal is using the country information, it must have and updated information.  If it does not have an updated information, it must inquire.  There is no impediment to the Tribunal inquiring.  And denying the applicant refugee status based on such an…..information and even after the applicant told the Tribunal peace talks have been broken.

CALLINAN J:   Your client was not going back to Sri Lanka, was he?

MR SILVA:   No, your Honour.  He was going back to India.

CALLINAN J:   What was happening was happening in relation to Sri Lanka, not India.

MR SILVA:   That is correct, your Honour.  Your Honour, things are this way, if I may explain.  Sri Lankan issue, Tamil Singhalese issue, south of India, as you all know, Tamil.

CALLINAN J:   I understand.

MR SILVA:   So Sri Lankan – rebels come into Tamil now to get supplies, food, medicine ‑ ‑ ‑

CALLINAN J:   It does not matter which side you support as a Sri Lankan, living in India.  So long as you conduct yourself according to Indian law, you will not be persecuted, will you?  It is only if you are assisting in India one side or the other that you may come to the attention of the Indian authorities; is that not right?

MR SILVA:   That is correct, your Honour, but there are two issues involved.  One is whether one is conducting himself according to Indian law.  The other is when you hold a political opinion in support of the Tamil Tigers, are you persecuted?  There are two issues involved.

CALLINAN J:   What, just for holding an opinion you would be persecuted in India?  Is there evidence of that or would there need to be some activity undertaken?

MR SILVA:   Your Honour, the evidence shows the applicant engaged in certain activity.

CALLINAN J:   Exactly.

MR SILVA:   And he was detained ‑ ‑ ‑

CALLINAN J:   There is no evidence that the holding of a mere opinion would attract the attention of the Indian authorities, is there?

MR SILVA:   Your Honour, holding a mere opinion in the sense of keeping to oneself may not be, but if one expresses the opinion ‑ ‑ ‑

CALLINAN J:   What about expressing the opinion?

MR SILVA:   If one expresses opinion, then one has problems.

CALLINAN J:   Where do we see the evidence of that?

MR SILVA:   Well, in this case, your Honour, that is not the same.  I mean, the facts are different here because your Honour is asking me from this case.  I cannot point it out to your Honour because the facts are different.  I have to go by the facts.  Now, your Honour, even if we assume the applicant was taken into detention because the common law applied for India against terrorism, but the applicant was beaten and the applicant was denied food and clothing and everything because the applicant was supporting the Tigers, and that was one of the complaints as well.

CALLINAN J:   He was doing all sorts of things for them.  He was transporting things or arranging for things to be transported.

MR SILVA:   But the Tribunal needs to isolate that, your Honour.  The Tribunal needs to say ‑ ‑ ‑

CALLINAN J:   It is an offence, according to Australian law, to incite or assist rebellion in other countries, is it not?

MR SILVA:   Your Honour, I have no idea on that and I do not think that may be relevant, with respect to your Honour, here.

CALLINAN J:   That is a different issue but it is a ‑ ‑ ‑

MR SILVA:   Yes.  Your Honour, the issue is this.  The Tribunal should have looked at the harm and said, “Look, this part of the harm was because of the common application, the other part of the harm was because he was holding political opinion”, and it must look at it.  Only then it can decide the Convention reason.  So I have formulated to your Honours the principle that we would like the Court to apply here.  This is partly supported by the decision, as I have given as part of the authorities, M164 where they say that in spite of the fact section 427 of the Migration Act does not have a duty to inquire requirement, where there is a necessity then the duty to inquire would arise.

GUMMOW J:   Thank you.

MR SILVA:   The third aspect, your Honour, is the no evidence ‑ ‑ ‑

GUMMOW J:   The red light is about to go on, Mr Silva.  Just tell us briefly what the third ground is.

MR SILVA:   Your Honour, that is no evidence ground, your Honour, and I do not think that would be a necessary one for this special leave application.

GUMMOW J:   Thank you.

MR SILVA:   If your Honour please, thank you.

GUMMOW J:   Thank you.  We do not need to call on you, Mr Lloyd.

Having regard to the findings of fact by the Tribunal and the grounds upon which the appeal to the Federal Court heard by Justice French was conducted, there are no prospects of success on any appeal to this Court.  Accordingly special leave is refused with costs.

The Court will now adjourn to Tuesday next, 14 November, at 10.15 am in Canberra.

AT 2.23 PM THE MATTER WAS CONCLUDED