SZEUX v MIMA & Anor

[2008] HCATrans 233

[2008] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S173 of 2006

B e t w e e n -

SZEUX

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 JUNE 2008, AT 3.25 PM

Copyright in the High Court of Australia

MR N.J. OWENS:   May it please the Court, I appear for the applicant.  (instructed by SZEUX)

MR S.J. GAGELER, SC:   May it please the Court, I appear for the first respondent.  (instructed by DLA Phillips Fox)

HAYNE J:   There is a submitting appearance for the second respondent, no doubt.  Yes, Mr Owens.

MR OWENS:   As the Court pleases.  Your Honours, the error, in my submission, in the courts below is the failure to recognise that the Tribunal’s finding on relocation depends upon its findings concerning the applicant’s claim to be a disciple of the man referred to as Baba, that is to say, the Tribunal was only able to conclude that the applicant could not safely relocate to Delhi because it assumed that he was not a disciple of Baba or, in the alternative, if he was a disciple, was not a devout disciple.  In other words, the finding that the applicant could live safely in Delhi was not a finding premised upon an assumption that the applicant was, if I could put this way, a full‑fledged disciple of Baba; it was a qualified finding that he could live safely in Delhi because he was a particular sort of disciple of Baba at best.

If, therefore, it is the case that the Tribunal fell into jurisdictional error in making its findings concerning the applicant’s claim to be a disciple and if it is the case that the Tribunal’s conclusion regarding relocation depends on those findings, then it is my submission that the courts below were wrong to conclude that there were discretionary grounds for refusing the grant of prerogative relief.  The first step in the argument, therefore, is that the Tribunal fell into jurisdictional error in making its findings about the claims to be a disciple of Baba.

HAYNE J:   Let me for a moment sidestep that.  Let me assume for the purpose of debate that that were to be established, can you explain to me again the way in which you go from that conclusion that they have made jurisdictional error about in what?  In finding a fact?  It is that point which I suspect I am not grasping.

MR OWENS:   The jurisdictional error is a failure to comply with section 424A.  That failure to comply infected the finding that the applicant was a disciple of Baba.  So much was conceded by the Minister.  What has not in terms been conceded by the Minister – and I think I must acknowledge this, it has never been precisely put this way before – what has not been expressly conceded by the Minister is that the finding that if the applicant was a disciple of Baba, he was not closely associated with him or not a devout follower, that that finding too is infected by the breach of the section 424A.

HAYNE J:   If we go to page 20 of the application book – and this is perhaps where I am not quite grasping the import of what you are saying – line 16 or so:

If he returned to Delhi, the applicant would not take up following Baba –

that seems to be a finding of fact, does it?  The Tribunal goes on to say:

He does not do so in Australia where he is free to be a follower.

MR OWENS:   Yes.  I think one, in my submission, needs to read that sentence with the preceding paragraph and then with the sentences that follow it.  If I can perhaps just take them all together.

HAYNE J:   Yes.

MR OWENS:   The first sentence is what I might call the qualified finding of safety, the ability to live safely in Delhi:

He would not face difficulties or serious harm from anyone other than were he to be identified as a follower –

So to determine whether he can live safely in Delhi depends on whether he will be identified as a follower.  The finding in the next sentence is:

There is no real chance that he would be identified –

The matters that follow that, including the sentence your Honour has just taken me, constitute the Tribunal’s reasons for why he will not be identified as a follower were he to live in Delhi.  Now, the words “take up” can, I think, convey one of two meanings.  The first is that the Tribunal considered that the applicant would not commence, as it were, for the first time following Baba if he went back.  If that is what it meant, then that finding is itself premised upon an assumption that he is not now and has not previously been a disciple of Baba and that is conceded to be infected with the breach of section 424A.

If “take up” means “resume”, then it is apparent, in my submission, that that finding was based upon the finding that the applicant was not a devout follower of Baba and that arises in this way.  He says he would not take up following Baba, he does not do so in Australia where he is free and, assuming that he is a member, he is not a devout member.  So, in my submission, what that must mean is that because the Tribunal has rejected the primary claim that he is a fully‑fledged or enthusiastic disciple of Baba, he would not take up following Baba in Delhi.  If he were an enthusiastic disciple that – I am sorry, what I am trying to say is that that finding, in my submission, is premised upon the conclusion that he is not an enthusiastic disciple of Baba and it is premised upon a finding that at best he is a non‑devout disciple of Baba.

I suppose there can be two steps preliminary to it.  One is that he does not practise in Australia, the other is that he is not a devout follower. that is the following sentence.  In my submission, those two findings are taken together to be the reason why the Tribunal found he would not take up following Baba in Delhi.  But even if one were to say that there was an independent basis that he would not take up following Baba in Delhi because he does not do so here in Australia where he is free to, in my submission, even that finding is infected by, or depends upon, the rejection of the primary claim and that is for this reason.

The applicant gave reasons why he did not practise his religion in Australia.  He said, at appeal book 14, that there were Sikhs where he lives in Australia and that he has not told anybody there about his faith.  He said that he does not practise in Australia because he does not want to put his life in danger and he also said that he does not practise in Australia because he has no books and no publicity, as he called it.  To say that the applicant does not practise in Australia, or because he does not practise in Australia he would not practise in India, must be to reject his explanation as to why he does not practise here. 

The Tribunal should not be taken, and I do not think anyone suggests that it should be taken, to have held that he will not practise upon returning to India because there he would fear for his life, as he claims he does here, because that would involve one in S395 type errors and nor does a fair reading of the Tribunal’s decision suggest that he would not practise upon returning to India because he there would not have books and literature.  In fact, he explicitly said he there would be at the direction of Baba, rather, it is apparent that what the Tribunal has done has reasoned from its prior conclusion that he is not an enthusiastic disciple of Baba to say that that is why he does not practise in Australia. 

So it is at best circular and, whichever way you come back to it, in my submission, it comes back to the Tribunal’s rejection of his fundamental claim that he is an enthusiastic disciple of Baba.  What the Tribunal then says – the critical finding is the fourth or fifth sentence in that paragraph at line 20.  The Tribunal says:

With this background he would not do anything that would draw himself to the attention of extremists.

What the Tribunal is saying is, even if he is a disciple of Baba, he is not a devout one and whatever he does, will not draw himself to the attention of Sikhs and that then links back with the conclusion at the top of that page that he would not be identified as a follower.  So the submission put shortly is that he can only live in Delhi safely if he is not identified as a follower.  The Tribunal has found that he will not be identified because he is a particular sort of disciple, a non‑devout one, and that finding is, I say, infected with ‑ ‑ ‑

CRENNAN J:   You cannot leave out of account, though, can you, that there is also the observation that Delhi is a massive city with a population of over 13 million and even in the remote chance that he was to be harmed in Delhi, he would be able to report the issue to the police?

MR OWENS:   Well, that can only, as it were, be a finding of effective state protection, I think, so a slightly different question to the relocation.  The finding on effective state protection was challenged in the Federal Magistrates Court.  The federal magistrate upheld the challenge, said that that was not a proper consideration of that issue.  That was not challenged in any way by the Minister on appeal, so I would repeat the submission that it is not a proper consideration of it.  The fact that he can report the matter to police is not a consideration of whether the state of India is willing and able to provide appropriate protection.

There is a simple conclusory statement that that is the case.  There was a concession by the Minister that even that finding may be affected by the breach of section 424A and ultimately the submission is the fact that the Minister took that no further after the finding against him in the Magistrates Court means that that option is closed off.

HAYNE J:   Yes.  Thank you, Mr Owens.  Mr Gageler, what do you say about the infection theory?

MR GAGELER:   Your Honour, I say this, that the only question is whether the breach of section 424A that was conceded, probably wrongly conceded, by the Minister affected ‑ ‑ ‑

HAYNE J:   Conceded.

MR GAGELER:   There is a question about the scope of the concession, which one might have to address, but conceded anyway, whether that breach then affected the finding that your Honour has referred to at page 20.  Can I say this about it.  That is a contestable question of fact.  It raises no issue of principle and it is a contestable question of fact that was found against the applicant by Federal Magistrate Nicholls at page 46 of the application book really recording a submission at the top of the page which

was accepted and, having been found against the applicant by the federal magistrate, it was not raised in the appeal before Justice Bennett.

If your Honours go to page 63 and simply look at the first two paragraphs, particularly the second paragraph, second sentence of her Honour’s judgment, it is apparent that the appeal before Justice Bennett was argued for both sides on the basis that the magistrate was correct in finding, as she put it, that the relocation finding was that “independent ground for the Tribunal’s decision”.  You have the finding of fact at first instance, you have the question of fact not being agitated at the stage of the intermediate Court of Appeal, it is simply not in the interests of justice that it be allowed to be raised for the first time before your Honours.

HAYNE J:   I do not think we will trouble you further, Mr Gageler.  Is there anything you wish to add, Mr Owens?

MR OWENS:   No, your Honour.

HAYNE J:   Thank you. 

We are of the opinion that the decision of Justice Bennett is not attended by sufficient doubt to warrant a grant of special leave.  Special leave is accordingly refused with costs.

The Court will adjourn to 2.15 pm on Monday, 16 June 2008 in Brisbane.

AT 3.39 PM THE MATTER WAS CONCLUDED