SZGRW & Anor v MIMA & Anor

[2007] HCATrans 151

[2007] HCATrans 151

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S462 of 2006

B e t w e e n -

SZGRW

First Applicant

SZGRX

Second Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 24 APRIL 2007, AT 2.33 PM

Copyright in the High Court of Australia

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

MR A. MARKUS:   If the Court pleases, I appear for the first respondent.  (instructed by Australian Government Solicitor)

GUMMOW J:   The Court holds a submitting appearance from the second respondent.  Yes, Mr Silva.

MR SILVA:   Your Honour, there are two questions in this special leave application and we put that in two propositions.  The first is, in determining whether a group an applicant claims to belong is a particular social group for the purposes of the Refugee Convention, a failure by the Tribunal to consider all three parts of the three‑part test set out in Applicant S paragraph 36 leads to an error of law resulting in jurisdictional error.  That is the first proposition, your Honour. 

The second proposition is that where an applicant claimed harm by non‑state parties and that there was denial of state protection, failure by the Tribunal to consider the persecution flowing from the denial of state protection when applying the three‑part test for particular social group resulted in error of law leading to jurisdictional error.

GUMMOW J:   Can you just look at the application book for a minute.  Do you have the application book there?

MR SILVA:   Yes, your Honour.

GUMMOW J:   Could you just look at page 85.  You see clause 8.1 it is said by Mr Markus that your, “argument appears to be to the effect that”:

it was incumbent upon the RRT to consider all three parts of the test –

coming from Applicant S –

irrespective of whether it already found that one or more parts of the test were not satisfied –

What do you say to that?

MR SILVA:   Your Honour, what we say to that is that, as long as the Tribunal considered all three parts of the test, if that is evident on record, then that should be agreeable, your Honour.  As long as all the three parts of the test are considered.  But if there is indication on the records that only one part of the test has been considered, then it should be in error.  I will demonstrate that by taking your Honours to the decision of the Tribunal where it is clear that only one part of the test has been applied by the Tribunal. 

The reason why special leave should be given here, your Honour, is that in Dranichnikov, yourself, Justice Gummow and Justice Callinan held at paragraph [26] whether any group an applicant claims to belong was a particular social group for the purposes of the Convention was at least a question of law.  That is the application of the three‑part test involves a question of law.  I have later referred to the decision of the courts below where both the Federal Magistrate and Justice Jessup of the Federal Court held that that finding is only error of fact.

Secondly, these issues are of particular importance because the correct test needs to be applied on all cases involving a claim of particular social group.  We wish to support the first proposition by reference to what was said in Applicant A by Justice McHugh where his Honour said that the issue for interpretation for the Tribunal was not membership of particular social group or the phrase “particular social group” but, rather, well‑founded fear of persecution for reason of membership of particular social group.  His Honour there said that it was a compound conception.

Justice Kirby in Khawar paragraph 109 referred to it with approval to what I referred to earlier of what Justice McHugh said in Applicant A.  In Khawar at first instance primary judge, Justice Branson, also referred to what Justice McHugh said about the contextual interpretation and her Honour said that what his Honour meant was that words should not be interpreted mechanically but, rather, in context.  The relevance of that to this, your Honour, is that in trying to understand what is meant by membership of a particular social group, the three parts cannot be considered as separate.  They are to be considered in context as a whole.

We further support that by the origin of these three tests.  In fact, in Applicant S, paragraph 21, the High Court split what was said as a single proposition in Applicant A into two propositions.  So it does not mean that in Applicant A the Court only set out two parts of the test and in Applicant S it broke it in three parts.  If there has been a significant difference between the test applicable in Applicant A and Applicant S, it would have been explained by the Court as such.

GUMMOW J:   What do you say about paragraph 11 on page 86:

in so far as the applicants’ summary of argument implies that the RRT was required to consider each part of the test . . . all three parts of the test need to be met, i.e. if any one part of the test is not satisfied, that is the end of the matter.

So if you get knocked out at one, why is there any error if there is no carrying on to deal with two and three?

MR SILVA:   When the test is applied, the test cannot be considered each part in isolation, because otherwise it will not be applied in context.  So when the test is applied, the test has to be applied as a whole and it is not meant to be a sequential one to say that part 1 is met, part 2 is met, part 3 is met.  The reason for that, your Honour, is that, for example, his Honour Justice McHugh said in Applicant A that the action of the persecutors would help to identify the characteristic or attribute of the social group.  If you are to apply just part 1 of the test, that part of the information would not affect the application of the test.

Also, if you consider part 3 of the test which is recognisability of the group, recognisability of the group is based on certain characteristic or attribute.  So part 3 of the test itself would help with the application of part 1.  So, therefore, we say that all three parts of the test need to be considered and applied.  It cannot be applied at individual parts.  Your Honour, if you consider the first part of the test, which is:

the group must be identifiable by a characteristic or attribute common to all members of the group -

it would be applied in…..without any understanding of its recognisability in the society or the influence of the persecution – the fact that persecution cannot be a defining factor of the particular social groups.  If the court disagree that part 1 can be applied on its own, then it will be in error because it is not applied in context.  As Justice McHugh said in Applicant A, if the phrase “well‑founded fear of persecution for membership of a particular social group” is not construed together it will be an error of law to interpret the parts of them and put them together.  If that is the case we cannot apply the test for a particular social group in parts and try to put them together.

As to the proposition number two, your Honours, the second proposition as stated earlier was that failure by the Tribunal to consider the persecution flowing from the denial of state protection when applying the three parts of the test for a particular social group resulted in error of law leading to jurisdictional error.  If you are to consider that test – for example, if you look at the wording of the second part of the test it says:

the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.

If you do not know what the persecution is that part of the test cannot be applied.  Also, as I described earlier, because the whole phrase needs to be construed together, the test for particular social group cannot be applied without concerning persecution into account.

Now, I wish to take your Honours to the errors made by the court below and firstly I will refer to the error made by the federal magistrate and most specifically I will take your Honour to page 38 of the application book, paragraph 37 where his Honour says:

In my opinion, it is clear that the Tribunal has been fully aware of the submission that was before it, and has addressed it with its finding of fact that “the groups suggested by the applicant’s agent and other groups which might be defined in similar terms are not “particular social groups” within the meaning of the Convention”.

By that his Honour means that this finding that the groups advanced by the applicant are not particular social group is a finding of fact which is in conflict with the finding in Dranichnikov paragraph [26] where it was said that this particular finding is at least partly an error of law.

Justice Jessup at Federal Court in paragraph 22 of his decision on page 59 also endorses the finding of the federal magistrate that this particular finding is a finding of fact.  Secondly, the federal magistrate appears to equate the test for particular social group with the test for the recognisability of the group.  His Honour appears to equate the whole test to part 3 of the test and by that process his Honour made an error. 

I would now refer your Honours to the decision of the Tribunal itself, especially page 14 and starting at line 4 where it starts, “In his submissions to the Tribunal”.  The Tribunal appears to misstate the problem by restricting the persecution to the harm by the money lenders and not considering the persecution flowing from denial of state protection.  That is clear from what the Tribunal says there on page 14 starting line 4 where it says:

In his submissions to the Tribunal, the applicant’s agent has suggested that the applicant is being persecuted by PT and KJ because he belongs to a “particular social group” within the meaning of the Convention.

From then on until the early part of the next page the Tribunal is confining itself to only one aspect of persecution.  The Tribunal has not considered the persecution flowing from the denial of state protection.  Instead of construing the phrase “well‑founded fear of persecution for reason of

membership of particular social group”, what the Tribunal has construed is well‑founded fear of persecution flowing from harm by the lenders for reason of membership of a particular social group.  So, therefore, by not taking both elements of persecution, that is, the harm flowing from the money lenders and the denial of state protection, the Tribunal only appears to have taken just only one aspect of persecution.

The Tribunal’s decision, going down further, if you look at line 20, the Tribunal has misinstructed itself on law because it has only referred to part of the law applicable to particular social group.  It is only confining itself to the third part of the test, that is, the distinguishability or ‑ ‑ ‑

GUMMOW J:   We are not sitting on review from the Tribunal, Mr Silva.  We are sitting to decide whether we will grant special leave to appeal from Justice Jessup.  Now, what did Justice Jessup say about this matter?  He seems to deal with it at page 60, does he not?  The question is, can you overcome to a sufficient degree of probability what is said there by Justice Jessup as to a fair reading of the Tribunal’s decision?

MR SILVA:   Your Honour is referring to paragraph 23 on page 60?

GUMMOW J:   The whole lot of material there.  In other words, you do not get anywhere here by reiterating the arguments you unsuccessfully put to Justice Jessup.  The question is, did Justice Jessup representing the Federal Court in its appellate capacity himself fall sufficiently plainly into error to attract a grant of special leave in what he did in rejecting your submissions?

MR SILVA:   Your Honour, one of the errors made by Justice Jessup, with respect, is his Honour said that to consider persecution in the application of part 2 of the test would be an error.  What we are saying is, using persecution to define the group is different from considering the persecution in applying part 2 of the test.  So there we say his Honour erred by considering that by using persecution to test part 2 is equal to using persecution to define the group.  That is the difference between what we see and what his Honour found.

Secondly, your Honour, the Tribunal premised its finding on the fact that even if there was such particular social group the persecution was not for membership of a particular social group.  Nowhere in the Tribunal’s decision there was such a statement by the Tribunal.  Again his Honour says that the finding by the Tribunal that the groups the applicant claimed to belong was not particular social group was not in error and that is what we were trying to demonstrate, that it was in error.  Unless your Honours have any other questions.

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

There are insufficient prospects of success in demonstrating error in the decision of the Federal Court in this matter to warrant a grant of special leave.  Accordingly, special leave is refused with costs.

AT 2.43 PM THE MATTER WAS CONCLUDED