SZQDS v Minister for Immigration and Citizenship and Anor; Razai v Minister for Immigration and Citizenship and Anor; SZQKC v Minister for Immigration and Citizenship and Anor; SZQGX v Minister for Immigration and...

[2013] HCATrans 145

[2013] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S187 of 2012

B e t w e e n -

SZQDS

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

Office of the Registry
  Sydney   No S204 of 2012

B e t w e e n -

MEHDI AGHA RAZAI

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

Office of the Registry
  Sydney   No S272 of 2012

B e t w e e n -

SZQKC

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

KERRY‑ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

Office of the Registry
  Sydney   No S273 of 2012

B e t w e e n -

SZQGX

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

Office of the Registry
  Sydney   No S274 of 2012

B e t w e e n -

SZQGI

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

KERRY‑ANNE HARTMAN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

Office of the Registry
  Sydney   No S280 of 2012

B e t w e e n -

SZQGU

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

CHRISTOPHER PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

Applications for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 JUNE 2013, AT 2.20 PM

Copyright in the High Court of Australia

____________________

MR S.E.J. PRINCE:   I appear with my learned friend, MR G.S. ANTIPAS, for the applicants in all of those matters.  (instructed by Phillip Yip & Associates in the first two matters and Gregory J. Goold Solicitor in the remaining matters)

FRENCH CJ:   I think you require extensions in all of them, do you not?

MR PRINCE:   I do, your Honour, yes.

FRENCH CJ:   Thank you.

MS A.M. MITCHELMORE:   If the Court pleases, I appear for the first respondent in all of those matters and the extension of time is not opposed.  (instructed by Australian Government Solicitor)

FRENCH CJ:   There will be an extension granted in each matter.  Yes, Mr Prince.

MR PRINCE:   Thank you, your Honours.

FRENCH CJ:   It is all the same point, is it not?

MR PRINCE:   It is, two different judgments with slightly different reasoning from his Honour Justice North and his Honour Justice Rares but, ultimately, it really comes down to the same point.  If I was going to take your Honours to any aspect of the books I was going to ask your Honours to look at the Razai book for convenience so your Honours do not have to flip between them.

FRENCH CJ:   Very well.

MR PRINCE:   I might need to briefly touch on Justice Rares’ reasons and if I do that I will do it by taking your Honours to SZQKC.

FRENCH CJ:   All right.  Thank you.

MR PRINCE:   Your Honours will have seen that the issue is whether the question of the absence of state protection is relevant to both the establishment of a well‑founded fear of persecution and being outside the country of origin for that reason as well as having established, or whether or not such a fear was established then whether or not the person returns or is willing to avail themselves of the protection of a state.

Those two elements of the Convention can be seen in Article 1A(2).  Perhaps I could just show your Honours that for convenience which is in Razai?  It is set out in the reasons of the reviewer at page 2.  I know your Honours are very well familiar with it but it repays a bit of reading again.  There are two elements and the definition tends to get broken down into two elements for analytical purposes.  The first is whether:

owing to well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, [the person] is outside the country of his nationality –

That would be commonly referred to as the first limb.  The second limb is whether or not owing to such a fear the person ‑

is unwilling to avail himself of the protection of that country –

FRENCH CJ:   The presence or absence of state protection would be relevant, to use your expression, and I think that of Justice McHugh in S152, to the first limb but not determinative, is it?  I mean, that is what this is all about.

MR PRINCE:   On Justice Rares’ approach that seems to be the way it was dealt with.  Justice North seems to divorce it more from the question of state protection from the first question, but assume for the moment that it is accepted that it could be relevant the next question is, well, when is it relevant?  S152, we said below, stood for the proposition that it can be relevant and that the circumstances in which it is relevant will be – to the first question – for example, where the matter has been squarely raised by the applicant, it is an issue not based on the country information and the like.

Clearly, in this case, it was an issue in play.  There was a complaint by the applicant that he feared the Taliban because there was no state to protect him from the Taliban, and there is country information that the history of the position of the Hazara Shi’ite people in Afghanistan is that they are not well supported by the various administrations from time to time in Afghanistan, so one can imagine that that issue also goes to the question of Convention reason.  That question was bypassed by the reviewer and, indeed, by the courts below by saying, well, you will have the protection of this armed faction of Hazaras within this particular area of Afghanistan and that is enough to hold the Taliban at bay and so you do not have anything to worry and so the next question in the second step does not arise.

To state that conclusion does not deal with the validity of the process by which it was reached and clearly the question of whether or not Afghanistan could provide adequate state protection was put forward by the applicant into the mix as to whether or not his fear of the Taliban was well founded, that is, for example, my fear of the Taliban is because the Afghan state is not going to protect me.  Now, the answer to that from the reviewer might be, well, I acknowledge that the Afghan state will not protect you but I think this warlord faction will do it and I think that is good enough and you do not need to worry.

That process of analysis did not even occur in this case, it was just said that the warlords would keep the Taliban at bay and so there was no need to consider state protection.  So, really, in that way of logic, which Justice North described as unarguable logic, effectively the issue of state protection is removed from the first step and pushed or relegated to the second ‑ ‑ ‑

FRENCH CJ:   Do you accept that the first step, if there be a finding that social conditions, be it a warlord faction or some other set of circumstances, is such that Taliban hostility to people of your ethnicity is unlikely to be expressed in the infliction of serious harm because you are protected by that set of social circumstances?  Is that not a sufficient basis, if that be a finding of fact, upon which to conclude that you do not have a well‑founded fear of being persecuted?  Let us assume it is a stable situation, of course.  We are not worrying about a situation where it is transient and protection only and it is going to disintegrate tomorrow or the day after; that is a different kettle of fish.

MR PRINCE:   It is different but it is relevant for this reason.  That finding by itself would not be enough because that finding has to be reached in cognizance of and having dealt with the applicant’s position which is, I want the protection of the Afghan state and I am not going to get it.  That step in the process to reach that conclusion is missing and because that – it might not be dispositive.  It may be that in the end a reviewer would say, well, I accept, or I don’t accept, that the Afghan state will not provide you with protection but nonetheless ‑ ‑ ‑

FRENCH CJ:   You are elevating the question of state protection in the first limb of Article 1A to a mandatory relevant consideration.

MR PRINCE:   No, your Honour, I am not.  That is how it was characterised below.

FRENCH CJ:   Well, you seemed to be saying that just then.  Perhaps you could tell me how it is different.

MR PRINCE:   I am saying that in this particular case it is relevant because it is being raised by the applicant as part of his case.

KIEFEL J:   That cannot be determinate of what the article requires.

MR PRINCE:   Well, it is, because ultimately the question is, what is the applicant’s fear and is that fear well founded.

KIEFEL J:   How would you, in brief summary, describe the applicant’s well‑founded fear?

MR PRINCE:   His well‑founded fear is of the Taliban attacking him because of his Hazara Shi’ite ethnicity and the traditional hostility between the Taliban and those people.

KIEFEL J:   You do not need the question of state protection to determine that.

MR PRINCE:   Your Honour, can I answer that by going to Horvath v Secretary of State for the Home Department [2001] AC 489 at 513 is the page I am seeking to take your Honours to, which is in the bundle of authorities and, in particular, the speech of Lord Clyde. In that case at point D – and his Lordship was in the majority – refers to the approach of Lord Justice Stuart‑Smith who:

took the view that persecution meant ill treatment pure and simple without any account taken of the state protection.  The majority of the Court of Appeal took the opposite view.  I consider that the majority were correct.

It may seem at first sight attractive to analyse the definition into the two parts and see protection as belonging to the second part and not to the first part.  Here particularly the use of the label of the “protection test” as applicable to the second part may prove dangerous.

Then, down to G on the page ‑

But in deciding whether a fear of persecution is well founded it seems to me that account must be taken of the availability of the forces of the state to counter the fear.  And if that is correct it is no longer possible to confine the consideration of protection to the so‑called “protection test”.  For a fear to be well founded it seems to me that all the circumstances relating to the fear have to be taken into account.  In assessing the existence of a real risk of the violation of rights occurring anything which may bear on the likelihood of the incidence of the violation will be relevant.

Now, here, the role of the Afghan state in standing between the applicant and the Taliban in circumstances where it does not seem to be in dispute that the Taliban has a hostility and persecutes Hazara Shi’ites, in the context of the Convention which is all about the role of the state in preserving those human rights must at the very least be a relevant consideration that ought to have been taken into account.

KIEFEL J:   The alternative view to that of his Lordship’s is, of course, that in the article the term “well founded” qualifies the “fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group”.  It does not qualify well‑founded fear of that together with and a concern about whether state protection would be available.  On that view, you do not get to the question of state protection.

MR PRINCE:   Yes, and that is the approach that was taken below but, in my submission, the approach adopted in Horvath, which is a holistic approach, is the approach ‑ ‑ ‑

KIEFEL J:   But it seems to proceed upon the basis that state protection will not otherwise be addressed, and it is, it is in the second limb of the article.

MR PRINCE:   On the approach that was taken below it never gets addressed, because by relegating it to the second limb and eliminating it from the first limb, because you have failed the first limb in the absence of state protection being relevant, you never get to the second limb for it to be taken into account at that point.

KIEFEL J:   But unless I am missing something, the only reasoning in Horvath appears to be that the notion of state protection resides in the term “well founded”, which seems to be importing the second limb for the purpose of testing the fear of persecution ‑ ‑ ‑

MR PRINCE:   It is not so much importing ‑ ‑ ‑

KIEFEL J:   It just seems a strange approach to construction.

MR PRINCE:   I am sorry, your Honour, I did not mean to cut across your Honour.  It is not importing the second limb into the first limb.  What it is saying is here is a factor, namely, state protection, and it is relevant at all levels of the inquiry.  It is relevant to whether or not there is a well‑founded fear of persecution.  It is relevant to whether or not that is for a Convention reason, and it is then relevant to the residual question of whether or not the person is unable to avail themselves of state protection.

Indeed, that is exactly what was decided in S152 in ‑ if I could take your Honours to page 9 of the report, it is reported in 222 CLR 1 – and I would ask your Honours to look at the reasons of his Honour Chief Justice Gleeson, Justices Hayne and Heydon at page 9, paragraph 21. It appears that their Honours applied the reasoning of the House of Lords in Horvath ‑ the majority obviously included Lord Clyde, who I have just taken your Honours to ‑ and that in doing so their Honours in particular had regard to the speech of Lord Hope of Craighead, who quoted with approval a passage from the judgment of her Ladyship Justice Hale in the Court of Appeal in Horvath, where her Ladyship said:

“[I]f it is sufficient, the applicant’s fear of persecution by others will not be ‘well founded’ –

that is, state protection –

if it is insufficient, it may turn the acts of others into persecution for a Convention reason ‑ ‑ ‑

KIEFEL J:   Is S152 though speaking of the situation where the fear is of harm inflicted by the state itself?

MR PRINCE:   No, it is talking about where the fear of harm is inflicted by non‑state actors, just as Khawar, where the fear of persecution was by a woman of domestic violence in Pakistan from her husband and his family, and the issue was whether or not in those circumstances where non‑state actors were involved.

KIEFEL J:   I am just reading from paragraph 23 where it is said:

Even where the harm feared is harm not inflicted by the State, or agents of the State, but where the State is complicit in the sense that it encourages, condones or tolerates the harm, the same process of reasoning applies.

MR PRINCE:   Yes, that is, where it is a non‑state actor harm, even then the attitude of the state is relevant to the decision of whether the fear of harm ‑ ‑ ‑

FRENCH CJ:   These were private individuals persecuting people on religious grounds?

MR PRINCE:   Yes.

FRENCH CJ:   But does the principle which you draw from S152 rise any higher than the proposition that in a case of alleged persecution by non‑state agents, the willingness and ability of the state to discharge its obligation to protect the citizen may be relevant at three stages of inquiry?

MR PRINCE:   No, it does not, and what it leaves unanswered and the reason why it is a matter appropriate for special leave is when ‑ ‑ ‑

FRENCH CJ:   When it may be relevant?

MR PRINCE:   When it may be relevant, and that is a question that arises because the manner in which the courts below approached this was to effectively ignore it by saying the outcome ignored it, so it is clearly not a relevant factor, but here the applicant raised the point.  The applicant is from a failed state where there does not seem to be any dispute that the state cannot provide protection, where there are longstanding hostilities between two groups of people, where there is potential – and coming back to your Honour’s point about the complication of what might happen in the future ‑ where the applicant is entitled to have the reviewer consider the quality of the protection that is said to be removing the fear.

FRENCH CJ:   I am just trying to pin down the error, because we are talking, of course, in the field of jurisdictional error, are we not?  The reviewer is not misconstruing Article 1A.  The reviewer is simply saying – this is as I understand your argument – that it is enough to determine the first limb without reference to absence of state protection, that there are these social circumstances under which the Taliban will be excluded from the area, or not allowed to by non‑state actors.

MR PRINCE:   That is not what the reviewer did.  The reviewer just ignored the question of ‑ ‑ ‑

FRENCH CJ:   Yes, it did not go to it, but that did not reflect some constructional approach to Article 1A(2).

MR PRINCE:   No, that approach comes in later ‑ ‑ ‑

FRENCH CJ:   That was just the approach which said, that is enough because there is no well‑founded fear.

MR PRINCE:   I do not know that it says, that is enough.  It says, that is why I found in this case ‑ ‑ ‑

FRENCH CJ:   Well, implicit in that surely is ‑ ‑ ‑

KIEFEL J:   Implicit in that surely is that state protection is not relevant in this case to the question of fear of persecution.

MR PRINCE:   I do not know that the reasons go that high, and it was always common ground below that the reviewer simply did not address the question of state protection.

FRENCH CJ:   Well, you could throw state protection into the mix.  It might either buttress or undermine, but it is not a choice which is based upon a particular constructional approach to Article 1A(2).  It is about how the reviewer deals with the evidence in this case.

MR PRINCE:   In my respectful submission, that is not so, based on the reasoning of the courts below from which appeal is sought to be brought, because their Honours say that it is safe to ignore the question, just not even address the question of whether there is effective state protection.  In the other cases that are referred to, in all of those other cases, there was at least an attempt by the reviewer to address the question of adequacy of state protection in Khawar and those other cases, and the reviewer came to the view that state protection was adequate.  But those cases do not stand for the proposition, as seems to have occurred below, that the reviewer is free to just disregard the question of state protection in coming to the first limb of the test because the decisions below set up this almost like a summary judgment state where if you do not get to well‑founded fear of persecution, because you do not get to the second limb, therefore you do not need to look at state protection.

KIEFEL J:   You seem to be coming closer to the mandatory requirement to consider it in the first limb.

MR PRINCE:   It is mandatory in these cases because it has been put forward because all of the evidence gives rise to it ‑ ‑ ‑

KIEFEL J:   Because it is put forward as an argument, but there is no suggestion that the reviewer is failing to understand the argument put forward.  Implicitly, it is rejecting it.

MR PRINCE:   Your Honour, I just do not know that anybody below has ever found that implicitly it was rejected.  The approach below has always been the reviewer did not even need to look at that argument.

FRENCH CJ:   But what is the key passage in the judgment of Justice North dealing with this?  It may be paragraph 36 on page 89.

MR PRINCE:   Yes, and paragraph 31 on page 88.

FRENCH CJ:   Yes.

MR PRINCE:   And, indeed, 36 on page 89.  Where it goes wrong is at paragraph 18 and 19 on page 84, where the statement of conclusion is identified without any analysis of why that statement of conclusion was reached, but it is just a bare statement of conclusion.  Then the statement:

It follows as a matter of inevitable logic from the finding that the appellant would not face serious harm . . . that the reviewer was not called upon to consider whether Afghanistan could or would provide protection.

Of course, when you define the question in that way, it is inevitable logic that you do not need to look at state protection, but that is rather our point, that the way in which the question has been defined excludes the consideration of state protection from the first limb, and S152 and Horvath require state protection to be considered in the first limb.  Your Honours

will see that reflected in paragraph 16 of Justice North’s judgment on page 84; that is, there was no necessity to consider, not that it was implicitly considered and rejected, but that there was no necessity to consider state protection for the first limb of the test.  I see the red light, your Honours.

FRENCH CJ:   Thank you, Mr Prince.  We will not need to trouble you, Ms Mitchelmore.  Mr Prince, we thank you for the assistance you and your junior have given to the Court on a pro bono basis in relation to all of these matters.

Each of the applications raises the question whether a failure by an independent reviewer of claims for determination of refugee status to consider absence of state protection, having found that protection was available from a non‑state actor constituted jurisdictional error in relation to the determination process.  In our opinion, the reasoning of the courts below in each case was unattended by sufficient doubt to warrant a grant of special leave and special leave will be refused.

AT 2.47 PM THE MATTERS WERE CONCLUDED