SZEGA & Anor v MIAC & Anor

[2008] HCATrans 90

[2008] HCATrans 090

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S363 of 2006

B e t w e e n -

SZEGA

First Applicant

SZEGB

Second Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 FEBRUARY 2008, AT 3.35 PM

Copyright in the High Court of Australia

MR A.N. SILVA:   May it please the Court, I appear for the applicant.  (instructed by Silva Solicitors)

MR G.T. JOHNSON:   May it please your Honours, I appear for the first respondent.  (instructed by DLA Phillips Fox)

GUMMOW J:   There is a submitting appearance for the second respondent.

MR JOHNSON:   That is my understanding, your Honour.

GUMMOW J:   As I should have noted, there was also in application No. 9 which Mr Lloyd did, for your interest.  Yes, Mr Silva.

MR SILVA:   Your Honour, in this special application we are bringing forward two issues for consideration.  One is about particular social group and the other is about race.  As far as the particular social group is concerned ‑ ‑ ‑

GUMMOW J:   Just before we get any further into it, there is a question of title of the Minister, is there not?

MR JOHNSON:   Yes, your Honour.  We ask that that be the Minister for Immigration and Citizenship.

GUMMOW J:   Yes, so the title of the first respondent should be changed to Minister for Immigration and Citizenship.

MR JOHNSON:   Thank you, your Honour.

MR SILVA:   Your Honour, the first principle that we want this Court to apply in this case is this.  Where the persecution alleged is not based on a law of general application it would be an error of law to use the distinction what a person is is different from what a person does as criteria to be met to satisfy the persecution was for reasons of membership of a particular social group.  His Honour Justice Edmonds used this distinction, that is, what a person is is different from what a person does, as one of the main criteria for denying the appeal.  We say that distinction is unreal and leads to mistake and based on how you will view it.  I should give some background as to how these principles came into the Australian jurisdiction.  It first came in in 1992 in a decision called Morato in which ‑ ‑ ‑

GUMMOW J:   Morato?

MR SILVA:  Morato.

GUMMOW J:   Yes, I remember.

MR SILVA:  In which Chief Justice Black, with whom Justice French agreed, held that the primary consideration in matters of a particular social group is what a person is is different from what a person does.  This decision was referred to in Applicant A by Justice Dawson and the relevant part of the decision is set out in Justice Edmonds’ decision in the Federal Court.  The important thing is Justice Dawson said:

The distinction between what a person is and what a person does may sometimes be an unreal one.  For example, the pursuit of an occupation may equally be regarded as what one is and what one does.  At other times, the distinction may be appreciable but not illuminating.  For example, the acts of conceiving and bearing a child may be what people do, but the result of those acts – that the persons involved are parents – is quite central to what they are.

What his Honour did was to restrict the application to where the persecution alleged is based on application of a general law.  So his Honour went on to say:

Where a persecutory law or practice applies to all members of society it cannot create a particular social group consisting of all those who bring themselves within its terms.  Viewed in that way, Black CJ’s distinction between what a person is and what a person does is merely another way of expressing the proposition which I have already stated.

An interesting point here is, your Honour, the decision in Morato itself did not involve a law of general application.  So therefore, if you apply the principle that Justice Dawson says to Morato itself, it will not be applicable to Morato.  That is where it has originated.  From then on in Chen Shi Hai the four justices of this Court referred to what Justice Dawson said in Applicant A in these terms.  They were referring to the black children in China, that is, children born outside the policy of one child only in China.  They are called “black children”.  Four justices in Chen Shi Hai said:

Such children are, even within the sense of the distinction drawn by Dawson J in Applicant A, persecuted for what they are . . . and not by reason of anything they themselves have done by engaging in certain behaviour or placing themselves in a particular situation. 

In that sense there seems to be some kind of support in this application where the persecution alleged is law of general application.  The importance of this principle is to be seen from the fact that the decision of Justice Edmonds at Federal Court was cited with approval by Justice Finkelstein in his decision in November 2006.  The title of the decision is MZXPG.  I have copies of that if that be necessary. 

In that decision his Honour Justice Finkelstein not only followed the decision in Morato but also cited this particular decision subject to special leave with approval.  So why I am saying that is this is an important issue at the Federal Court level, that this particular decision subject to special leave appeal is being applied in other cases.

CRENNAN J:   But even accepting it is an important issue, is not the nub of Justice Edmonds’ decision to be found at page 79 of the application book.  At 16(a) his Honour says that:

Even assuming that the groups postulated in their further amended application are particular social groups within the meaning of the Convention, and further assuming that the appellants are members of one or both of these groups, their membership of one or both of these groups is not the essential and significant reason (s 91R(1)(a) of the Act) they fear persecution –

and he goes on to describe the issue in relation to the wife’s parents.

MR SILVA:   Your Honour, the reason his Honour gives is the persecution is because the applicant wife and husband are daughter and son.  That is the answer his Honour gives.

CRENNAN J:   But his Honour is directing attention to section 91R in the context of your argument.

MR SILVA:   That is correct, your Honour.  I mean, there is no dispute about that.  It is an essential and significant reason.  As I cited in my submissions, your Honour, when you ask the purpose of the persecution, there are several ways of answering that.  In the decision of Lord Hoffman in ex Parte Shah, also cited with approval by the Chief Justice and also Justice Kirby, they were referring to a situation in Germany where the Jewish shopkeeper was set upon by his rival and the question was asked, why was the person persecuted?  Two ways of answering is, one is that the competitors want the Jewish shopkeeper to go out of business but the more relevant answer would be because they know that he would not be protected based on his race.  Therefore, if you ask the question, why was the daughter and the son-in-law harmed, one way of saying is because they are daughter and son-in-law, but another better way of looking at it is because they breached the moral of the society.  They intermarried between communities.  This particular issue has been clearly set out in the protection visa application which Justice Edmonds refers to in page 82, first paragraph.  His Honour says:

‘Why did you leave that country?’, they responded: ‘We left the country due to consistent fear of life threats because of our background of different communities and complication arises on our getting married’.

So the primary reason they are saying that they were persecuted was because they were from different communities and their intermarriage and that should have been the answer when Justice Edmonds asked what was the reason of a persecution?

GUMMOW J:   You have also got to deal, I think, Mr Silva, with an addition to the passage Justice Crennan took you to, the passage at 85 on the subject of relocation.

MR SILVA:   Yes, your Honour.  I am certainly going to do that.

GUMMOW J:   He referred to what happened or did not happen to them while they were in Madras.

MR SILVA:   Yes, your Honour.  The need to address that, your Honour, would be because of the exercise of discretion, I believe, whether there is an independent ground of reasoning if you are to succeed on the other ground.  If you are to succeed in establishing jurisdictional error, then we have to prove that there is no reason for exercising discretion.  When we look at the reason for relocation, there are serious issues with that.  Firstly, the relocation finding was based on the Tribunal saying there was no harm whatsoever when they were in Chennai.  Now, there is an error there because of the Tribunal’s failure to understand the requirement of harm under the Convention.  It need not be physical harm, it can be a threat.  So the Tribunal saying there is no harm whatsoever is incorrect. 

Secondly, the Tribunal said that the threat is local.  They said the Telegu Desam party is local, but the.....your Honours, we all know.....have no borders.  From Victoria, New South Wales or from.....Tamil.....have no borders, so they are not localised.  Further, the Telegu Desam party, though it is localised, it has an overall presence in India.  The speaker of the lower house was from that party.  There are five Cabinet Ministers from the party.  So all the three reasons.....for relocation cannot be sustained.  Also, when this Court is considering exercising discretion to refuse leave, that independent strand of reasoning must be unimpeachable.  This comes from the decision of SAAP and SZBYR, I think. 

Now, what they say is, if the independent strand of this reasoning is legislation based or statute based, that is, the result is without any question, foregone conclusion, then of course this Court can refuse the leave; not otherwise.  There is nowhere any reasoning that says simply because you have another reasoning that you can refuse the leave.  Refusing for leave is a serious matter, so only if this Court is convinced that there is a reason that cannot be impeached, this Court should exercise discretion. 

If I may go on to the second principle, your Honour.  The second principle, your Honour, is that whether persecution based on caste or persecution based on community solely defined by the surname, would that be persecution based on race, because that is how our claim has been fought before both courts below before the federal magistrate and before Justice Edmonds.  It was fought on the basis of caste/community.  The principle that we want this Court to apply in this case is this.  Persecution for reason membership of a group which is defined by heredity, descent or ancestry is persecution based on race and thus persecution based on either caste or membership of a community defined solely by a common family name is persecution based on race.  That is the principle we want this Court to apply because the applicant put its claim based on two communities. 

The applicant comes from Bagepalli community, the wife comes from Cingareddy community.  He said, “Because we belong to different communities we are being persecuted”.  So what they are saying is this community solely defined by surname, which means ancestry, and the other community too solely defined by surname which is ancestry as well, therefore, the conflict is based on race which is ancestry based.  Therefore, the Tribunal should have held there is persecution based on race.  As I pointed out earlier, your Honour, the applicant’s claim was clearly put, as I said.  In question 40 it was put:

We left the country due to consistent fear of life threats because of our background of different communities and complication arises on our getting married.

So this should have prompted Tribunal to look at whether there is particular social group or whether there is race involved because if you look at the previous question, the question is this:

What do you fear may happen to you if you go back to that country?

The applicant says:

We are Hindu by religion and belong to different ethnic communities and social groups.

So by referring to different ethnic communities, the applicant was clearly referring to race.  Not only that, they are mentioning about social groups.  Though they are mentioning in the wrong context, at least that should have prompted the Tribunal to consider.  The question here is not whether the applicant satisfies the membership of a particular social group because Justice Edmonds assumed that.  The question is, was persecution for membership of a particular social group?  I do not think the answer is to say my daughter.....daughter, the son-in-law.  No parent is going to harm their child just because they are a child or son-in-law.  So you have to look further than that and say, what was a reason for harm?  The reason for harm because the daughter married outside the community without the permission of the parents and eloped with the other person.  Those were the reasons. 

This should have prompted the Tribunal to consider whether there was particular social group.  It could have considered and rejected.  That is okay so long as it considered.  In this connection Justice McHugh says you cannot bring an argument and say there is no evidence, the applicant did not put evidence to say that there is the existence of this particular community because the Tribunal must ask the question whether there is a particular social group.  Even if there is no evidence put by the applicant, it does not matter, because a requirement is a legal requirement to ask that question.  It is an inquisitive Tribunal and when it asks such a question, then the Tribunal will look for evidence.  Unless your Honour has any questions.

GUMMOW J:   Thank you, Mr Silva.  We do not need to hear from you, Mr Johnson. 

There are insufficient prospects of success in any appeal from the decision of Justice Edmonds in the Federal Court to warrant a grant of special leave in this matter.  Special leave is refused with costs.

AT 3.53 PM THE MATTER WAS CONCLUDED