SZQSX and Ors v Minister for Immigration and Citizenship and Anor

[2013] HCATrans 113

[2013] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S185 of 2012

B e t w e e n -

SZQSX

First Applicant

SZQSY

Second Applicant

SZQSZ

Third Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MAY 2013, AT 11.21 AM

Copyright in the High Court of Australia

____________________

MR N.J. OWENS:   If the Court pleases, I appear with my learned friend, MS F.T. ROUGHLY.  (instructed by the applicants)

MR A. MARKUS:   If your Honour pleases, I appear for the first and second respondents.  (instructed by Australian Government Solicitor)

HAYNE J:   Yes, Mr Owens.

MR OWENS:   Your Honours, the first error of the courts below is found in paragraph 13 of the Federal Magistrate’s reasons which is at application book 43 continuing over to page 44.  Those reasons were adopted without elaboration by the Federal Court, which is paragraph 25 of that judgment at page 59 of the book.  The relevant passage starts at about line 25 on page 44 where your Honours will see it is said that:

It is evident that where a Tribunal turns its mind to the possibility of extortion motivated by persecutory intent, but finds upon sufficient evidence that the extortion lacked a persecutory element, it is not open to the courts to interfere with that finding.

That reflects the basis upon which the courts below have proceeded, namely, that the Tribunal made a finding that the harm suffered and feared by the first applicant in this case lacked any persecutory element.  It is my submission that in fact the Tribunal did find that there was a persecutory element and, having done so, fell into jurisdictional error by applying the wrong legal test in determining whether that element constituted the essential and significant reason for the harm both suffered and feared. 

The error in the Tribunal’s approach was its failure to recognise that the first applicant’s political opinion could be the essential and significant reason for his persecution, notwithstanding that the reason his political opponents had selected him as a target for extortion was the fact that he was a successful businessman.

HAYNE J:   Where do we most conveniently find that in error, or attribution of error, in the Tribunal’s reasons?

MR OWENS:   That is where I am turning now.

HAYNE J:   I am sorry.

MR OWENS:   So the first thing I need to do is make good the proposition that the Tribunal did find that there was a persecutory element to the harm suffered and feared by the first applicant, and that it did so follows necessarily, in my submission, from the fact that the Tribunal considered the question of essential and significant reason at all.  That phrase is found in section 91R(1)(a) of the Migration Act which says that:

For the purposes of the application of this Act . . . Article 1A(2) of the Refugees Convention . . . does not apply in relation to persecution for one or more –

Convention reasons unless that reason satisfies the three conditions there set out.  In other words, the need to consider whether harm satisfies the section 91R(1) criteria only arises where an anterior finding that persecution for a Convention reason has, in fact, been made.  If, as the courts below said, the Tribunal had not made such a finding, there would have been no need to go on to consider the more demanding hurdle posed by section 91R.  That the Tribunal made that finding is, in any event, reinforced by some other aspects of its reasons.  If I could take your Honours to page 29 of the application book at paragraph 122, your Honours will see there that at about line 3 the sentence starts:

The applicant claims that these people –

namely, the people attacking him –

were supporters of the Awami League and although it has not been established the Tribunal accepts this is likely to be the case.

So there was a finding, or at least the basis upon which the Tribunal made its decision, was that the people who were attacking him were his political opponents and there is nothing in the reasons to suggest that the fact that they were his political opponents was a purely fortuitous circumstance or a coincidence.

In relation to fear of future harm, the Tribunal found that the reason he would not be subject to attacks in the future was because his political adversaries would no longer have a continuing interest in him if he did not undertake political work upon his return.  Your Honours will see that at paragraph 125 which is over the page, and it is at the end of the paragraph:

In the circumstances the Tribunal finds that the applicant’s political adversaries will no longer have a continuing interest in him if he returns to Bangladesh and will not seek to bring a false case against him.

It is my submission, in other words, that the Tribunal expressly recognised that the harm that was both suffered and feared by the applicant had a persecutory element, namely, his political opinions.  Now, it follows from that ‑ and, as I said, that is the reason why the Tribunal needed to go to the 91R(1) stage of the analysis ‑ it follows that if the courts below were wrong in saying that what the Tribunal had done is proceed on the basis that the anterior stage had not been satisfied, they did not actually then proceed to consider whether the Tribunal’s consideration of whether the essential and significant reason test had been satisfied at all.

In my submission, the Tribunal erred in its application of the essential and significant reason test emerges again from paragraph 122 of the Tribunal’s reasons on page 29.  Your Honours will see there that in the middle of the paragraph there is a sentence that says:

It does not accept –

namely, the Tribunal does not accept –

that the applicant’s political opinion and his role as social welfare secretary for Ward 8 of the BNP is the essential and significant reason for the actions of his attackers.

The reason for that conclusion appears to be the final sentence of that paragraph, namely:

The Tribunal finds that the attempts to extort money from the applicant and subsequent threats made against him after he failed to pay were criminal acts.

There is a similar distinction or dichotomy drawn by the Tribunal at paragraph 115 on the previous page where at the end of that paragraph the Tribunal finds that the event, namely, the attack:

was a case of extortion for the reason that the caller had the view that the applicant was a successful business man of some means.

So, in the applicant’s submission, the Tribunal considered that a finding that these attacks were motivated or that the reason the applicant was selected was because he was a successful businessman of means was somehow in answer to whether or not the fact that he was also selected or that there was a connection between the selection of him and his political opinions and it treated that as an answer to the essential and significant reason test.

So we say that the Tribunal applied a wrong legal test by assuming that where criminal acts are motivated in part by self‑interest or a desire for gain, that the essential and significant reason for those attacks cannot be a Convention reason.  The question, obviously enough posed by the statute, is whether the Convention reason rises to the level of an essential and significant reason for the harm.  That question is not answered by characterising those attacks as motivated for some other reason or having a particular character, namely, criminal acts.  I add there that it seems, as we understand it from the Minister’s submissions, that if that is what the Tribunal has done the Minister accepts that would be an error of law. 

Can I turn then to the second error about which we complain?  That perhaps emerges most clearly from paragraph 126 of the Tribunal’s decision, and your Honours will see there that in the last sentence:

the Tribunal finds that there is not a real chance that the applicant will be targeted for or suffer serious harm in Bangladesh for reason of his political opinion as a member and supporter of the BNP.

The first point to note, of course, is that that finding is itself infected by the first error that I have identified, namely, the assumption that political opinion cannot be the essential and significant reason for persecution if it also satisfies the test of criminal act motivated by a desire for personal gain, but the error runs deeper.  The Tribunal concluded that the reason the applicant did not face a real chance of persecution upon return is because he would not be active in political matters upon his return and the reason is because he no longer occupies the position that he did previously, and your Honour sees that in the previous sentence in paragraph 126.

In our submission, what the Tribunal has there done is improperly limit its consideration of the question what will happen to this person upon return to Bangladesh by focusing upon will this person do exactly the same thing that they were doing previously.  The true test, of course ‑ and this is explained very clearly in your Honour Justice Hayne’s and Justice Gummow’s judgment in S395 ‑ is to focus on what is likely to happen upon return.  What has happened in the past provides some guide for that usually, but it is wrong to focus on or to approach that question solely by reference to will this person act in exactly the same way as they

have previously, and particularly here we say by reference to the question will they occupy precisely the same position that they did before.

Now, the error there, we say, emerges – or the vice in that approach emerges most clearly when your Honours turn back to page 16 of the application book, and we find here the Tribunal’s account of the evidence that was given, and in particular at paragraph 72 in the last sentence.  The Tribunal says:

He said that his political opponents think that if he returns and works for the people again then they will come to think more of the applicant than they do of the Awami League.

That was an answer in response to the question, why will your political opponents have a problem with you when you go back?  Now, that evidence was not referred to by the Tribunal when it turned to consider does he have a real chance of suffering harm when he goes back.  They approached that solely on the basis that he no longer occupies this one particular position, but that evidence, in our submission, is very clear evidence that he had expressed an intention to continue to do the same political work that he had done previously and the Tribunal’s failure to take that into account in considering the question that it was required to address is an error.  If the Court pleases.

HAYNE J:   Thank you.  Yes, Mr Marcus.

MR MARKUS:   Your Honours, the Minister submits that this matter is not appropriate for the grant of special leave in part because it raises no legal issue of general importance.  The proposed grounds of appeal ultimately turn on the construction of the Tribunal’s reasons, not on any legal principle.  In addition, the Minister also submits that the applicants have insufficient prospects of success on any appeal.

Turning very briefly to the two grounds – and I should say, if your Honours look at the draft notice of appeal there are five grounds identified but they have been grouped into two grounds, so I am dealing with them on that basis.  If your Honours turn to the first ground of appeal, the allegation is that the Tribunal misunderstood the legal position in that it proceeded on the basis that if the motivation for the persecutory acts were extortion for a particular reason it could not also be the case that there was a second reason which satisfied the relevant requirement in section 91R.

My friend has referred to page 44, paragraph 13 of the reasons of the Federal Magistrate which were relevantly adopted by the court below at page 59, paragraph 25.  Can I draw your Honours’ attention to page 43, that is the beginning of that paragraph that my friend referred to, and I will not

read the whole paragraph out, your Honours, but I will ask your Honours to have a quick look at it because, in my respectful submission, what it discloses is that the Federal Magistrate had a correct understanding of the legal principles and made certain findings by reference to the Tribunal’s reasons and those findings ultimately concluded as follows:

In the instant case, the Tribunal came to the conclusion about the real motive for the extortion attempt upon the applicant after taking into account his own evidence and the written material that had been provided by him concerning the reporting of the incident to the police.

HAYNE J:   I think we need not trouble you further, Mr Markus.

MR MARKUS:   Thank you.

HAYNE J:   Anything in reply, Mr Owens?

MR OWENS:   No, your Honour.

HAYNE J:   Thank you.

In our opinion, an appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.  Special leave is refused.

MR MARKUS:   Your Honour, the Minister seeks his costs.

HAYNE J:   Is there any reason why costs should not follow the event?  With costs.

AT 11.37 AM THE MATTER WAS CONCLUDED