VBAO v MIMIA & Anor

[2006] HCATrans 434

[2006] HCATrans 434

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M81 of 2006

B e t w e e n -

VBAO

Appellant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

GLEESON CJ
GUMMOW J
KIRBY J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 9 AUGUST 2006, AT 11.51 AM

Copyright in the High Court of Australia

MR R.M. NIALL:   May it please the Court, I appear with my learned friend, MR C.G. FAIRFIELD, for the appellant.  (instructed by Arnold Bloch Leibler)

MR P.J. HANKS, QC:   Your Honours, I appear with MR C.J. HORAN for the first respondent.  (instructed by Clayton Utz)

GLEESON CJ:   Yes, Mr Niall.

MR NIALL:   May it please your Honour.  If the Court pleases, there are two issues arising in the appeal.  The first is the construction of the phrase “threat to the person’s life or liberty” in section 91R(2)(a) of the Migration Act, and the second is whether the Refugee Review Tribunal applied the correct test when it affirmed the decision of the delegate not to grant the appellant a protection visa.

KIRBY J:   Potentially there is a third issue raised by the notice of contention.

MR NIALL:   In my submission, that third issue is absorbed in the second question identified, being whether or not the Tribunal identified or applied the correct test.

GLEESON CJ:   The reasons of the Tribunal appear from page 66 – the numbering is a little complicated, by the way, but I am taking the numbering from the bottom.  Do you say there is jurisdictional error in the reasoning of the Tribunal?

MR NIALL:   We do, your Honour.

GLEESON CJ:   Where do we find the error in the reasoning of the Tribunal?

MR NIALL:   The error is manifest by the treatment by the Tribunal of the threats to life which the Tribunal accepted the applicant had received in Sri Lanka.  Our contention is when the Tribunal approached those threats, it did so through a misunderstanding or misapplication of 91R and ‑ ‑ ‑

GLEESON CJ:   But the Tribunal never had to apply 91R to those threats, did it?  Section 91R requires you to consider what is going to happen in the future.

MR NIALL:   Yes, your Honour.

GLEESON CJ:   And that is the context in which 91R is to be interpreted.

MR NIALL:   Yes, your Honour, we accept that.  The Tribunal concluded that the appellant would not face serious harm should he return to Sri Lanka.  That was an essential element of the question posed for the Tribunal.  It approached that future task, “Will the appellant face serious harm?”, having immediately before asked itself whether the appellant had suffered serious harm in the past.

GLEESON CJ:   But the problem is the word “threat” is an ambiguous word that takes its meaning from its context.  It might mean “menacing words or conduct” or it might mean “a risk or danger”.  The context of section 91R is a context about serious harm in the future.

MR NIALL:   Which could, in our submission, be constituted by threats being made in the terms of a declaration or intimation of harm in the future.  It is entirely consistent to read it in that way to say that the appellant might face a repetition of the conduct that he faced in the past, and when one looks at it, if there is a repetition of that conduct, threats of that nature received by him in that context, that could constitute serious harm and he could be a victim of persecution in the future.

GLEESON CJ:   But one thing the Tribunal was not called on by the legislation to decide was whether he had been persecuted in the past.

MR NIALL:   No, it was not as a question of its jurisdiction.  It was not required to answer that question.

GLEESON CJ:   No, the legislature’s task was to decide whether he would be persecuted or that he had a well‑founded fear of persecution in the future.

MR NIALL:   Yes, your Honour, we accept that.  But of course, as this Court made clear in Guo, what happens to the future is a question for prediction based in large measure as to what happened in the past, not only, in our submission, about what factually happened, but also the character of that past conduct.

GLEESON CJ:   Yes, but the statutory context in which the ambiguity of the word “threat” arises is a context which is talking about what is going to happen in the future.  Is it your submission that what the Tribunal was interested in was what nasty things people might say to him in the future?

MR NIALL:   The Tribunal did not turn its mind to the question whether the appellant would receive threats in the future which would constitute by themselves serious harm, and that is the essence of our complaint and that is the essence of what 91R(1) directs attention to.

GLEESON CJ:   That is the issue?

MR NIALL:   As we conceive it, if your Honour pleases, but we make that submission on the basis that the prediction as to the future being based on past events is also critically based on the character of past events.  Justice McHugh has observed that conduct is one aspect, but not an important aspect, of persecution.  It must have something more.  It is the character of conduct that is the critical issue for ‑ ‑ ‑

KIRBY J:   Can you point to the point on page 68, I suppose it is, where the Tribunal erred, in your submission, in the language that they used?

MR NIALL:   The Tribunal identified at page 68, line 12 that the”

applicant must fear persecution.  Under s.94R(1) of the Act persecution must involve “serious harm” . . . for example, a threat to life or liberty, significant physical harassment –

et cetera.  The Tribunal did not pause to consider what was meant by a threat to life or liberty in that context.  So the ambiguity is not expressly resolved by the Tribunal’s reasons in terms of how the Tribunal approached it.  The Tribunal did not return to the different forms of harm by reference to 91R, but it did at page 77 at line 12 observe that it had:

reached the following conclusions about the mistreatment he claimed to have experienced.  I am prepared to accept that the applicant might have received intimidating and threatening telephone calls and letters –

receiving three in December and then another 10.  It also refers to an assault.  The Tribunal goes on to say:

I am, however, not satisfied that the character of what he has described exhibits the characteristics necessary for it to constitute persecution within the meaning of the Refugees Convention.  I consider that the telephone calls and letters, while no doubt troubling, does not involve serious harm.

GLEESON CJ:   Yes, but then it came to the point on page 78 at line 15 where it addressed itself to the issue the Tribunal had to decide.

MR NIALL:   Yes, your Honour, we accept that it then flipped over to look to the future ‑ ‑ ‑

GLEESON CJ:   Well, that was its task.

MR NIALL:   ‑ ‑ ‑ as it was required to do.

GLEESON CJ:   The fact in issue is the prospect of future harm.  What has happened in the past is a fact, or may be a fact relevant to the fact in issue, but what the Tribunal has to decide is the prospect of future harm.

MR NIALL:   If the Tribunal was to conclude that a person is going to suffer very significant economic harm to the point of an inability to subsist and the Tribunal said, “I don’t think that’s the form of harm contemplated by the Convention”, it would be looking forward and it would be making an express error by reference to the fact that 91R makes it clear that the sort of harm can include economic harm.

We invite the Court, with respect, to draw the same conclusion; that is, it did look forward but it articulated for itself a form of harm which is either different to or narrower than what is contemplated by 91R and the Convention.  That is the task for the Tribunal and that is the task, if we are to succeed on jurisdictional error, that we have to make good, with respect.

KIRBY J:   This is quite a subtle point.  You are looking to the future, but we can only ever, being human, predict the future by reference to what has happened in the past.  So they are looking to the threats that occurred to him, as he said, in Sri Lanka before he came here, but discounted by what they thought was some exaggeration but accepting certain matters.  I suppose what we have to ask ourselves is what was the purpose of 91R?  Was it to cut down on the ambit of the Convention or was it, as it were, to steer the mind of the decision‑maker on how the Convention was to be applied?

MR NIALL:   It is the latter, in our submission, your Honour.  Section 91R does not evince an intention to narrow the Convention.

KIRBY J:   One would think you would construe the - unless there is a clear indication, you construe the statutory provision in a way that is fulfilling the Convention obligations, not diminishing them.

MR NIALL:   With respect, we would adopt that, and what appears to be in Parliament’s contemplation was the perception that courts had narrowed the Convention, but that the true meaning of the Convention was as Parliament now expressed in 91R; that is, it is Parliament’s expression of what the Convention contains rather than Parliament’s intention to narrow what the Convention contains.

KIRBY J:   All right, well, let that be.  Is the mistake on the part of decision‑makers in the Tribunal or the courts that Parliament was trying to correct to say, “Well, lots of threats are said to people.  Some of them have content and some of them are just bravado, but you’ve really got to concentrate on what’s going to happen in the future and whether there will be a serious risk to the person having regard to what’s happened in the past and country information about the state of the country at the present and what’s likely to happen on that basis in the future”.  Is that how it is supposed to work, or not?

MR NIALL:   Yes, your Honour, but subject to this observation, with respect.  Section 91R is only concerned with persecution.  It is concerned with defining and isolating that concept.  It is not concerned with the prospect of persecution occurring in the future and it is not concerned with ‑ ‑ ‑

GLEESON CJ:   Just a minute.  The only persecution that is relevant to the decision‑maker’s decision – or that he has to decide about is future persecution.

MR NIALL:   Yes, your Honour, but ‑ ‑ ‑

GLEESON CJ:   And the provisions of 91R which elaborate, if I could use that neutral term, elaborate the concept of persecution, do it for the purpose of explaining what is meant by persecution in the future.

MR NIALL:   It provides the basis upon which the future prediction can occur, but it does that by defining elements of persecution, but it is not concerned with, in its terms, whether or not the persecution will arise.  Now, that is plainly an issue of importance that the Convention requires, but 91R(1) is concerned with a smaller, if I can use that expression, issue along the way.

GLEESON CJ:   That seems to ignore the opening words of 91R(1).

MR NIALL:   No, with respect, in my submission.  What the opening words make clear is that for the purposes of applying persecution as a concept in the Convention context, that persecution has to contain certain elements, and it is simply isolating for the purposes of identification what those elements might be.  By contrast, may I direct your Honour’s attention to 91R(3)(a), which uses a different formulation.  It says:

For the purposes of the application of this Act and the regulations to a particular person:

(a)      in determining whether the person has a well‑founded fear of being persecuted –

So the contrasting language, in my submission, can assist – or does assist, I should say, our argument, that what is in the purpose of 91R(1) is really to get the ground rules established, to define the terms.  The area of debate is made clear by the subparagraphs – subparagraph (1).

GLEESON CJ:   Where, in a context of inquiring whether a person is going to come to serious harm if he is sent back to a particular place, the legislature says serious harm includes a threat to the person’s life or liberty, does not the word “threat” mean “danger”?

MR NIALL:   No, with respect, because what threat is used in subsection (2) is to simply identify the harm that constitutes serious harm, not the likelihood of it occurring.  The debate, in my respectful submission, or the purpose of subsection (2) and the area of discourse that prompted subsection (2) can be seen in a passage in the judgment of Justice McHugh in Chan 169 CLR 430 and his Honour at page 430 of the report at about point 2 on the page talks about:

A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason . . . The threat need not be the product of any policy of the government of the person’s country of nationality.

GLEESON CJ:   There he is using the word “threat” to mean risk or danger, is he not?  He is not talking about menacing utterances.

MR NIALL:   Yes, your Honour, I think his Honour is making that observation, but at the middle of the page at point 5 his Honour goes on to deal with an area of debate which 91(2) is directly directed to:

Moreover, to constitute “persecution” the harm threatened –

so the impending harm ‑ ‑ ‑

GLEESON CJ:   Exactly, not what somebody is saying or writing.

MR NIALL:   I accept that, your Honour:

the harm threatened need not be that of loss of life or liberty.

The harm is the loss of life or liberty.  The threat is the risk to loss of life or liberty.  His Honour goes on:

Other forms of harm short of interference with life or liberty may constitute “persecution” . . . Measures “in disregard” of human dignity . . . loss of employment . . . persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination.

Then his Honour goes on at 431 ‑ ‑ ‑

GLEESON CJ:   I would have thought on page 430 you find Justice McHugh using, and repeatedly using, the concept of “threat” in exactly the sense that Justice Marshall, and in another case, Justice Crennan, said it was understood in section 91R.

MR NIALL:   The critical distinction, in my submission, is this, that his Honour recognised the distinction between the threat of harm and what the harm is and 91R(1)(b) and (2) is only concerned with the latter and not the former.  There is no doubt, and we readily adopt that the Convention requires a consideration of the risk of harm, it will always require that task, but one needs to know what form of discriminatory conduct is sufficient to constitute persecution and that is all subparagraph (2) is directed to.

KIRBY J:   As the Chief Justice said, “threat” is an ambiguous word and there are various dictionary definitions that have been put before us.  Do we have the parliamentary debates and the explanatory memorandum?  Have you sent them into us or not?

MR NIALL:   We have, your Honour.  There is a revised explanatory memorandum which is contained in the material we have provided to the Court.

KIRBY J:   What light do they throw on the meaning that Parliament intended by adding this provision?  One must assume that it was not added to expand the application of the Convention to protect more people who are claiming refugee status.  One must assume it was there to try and cut back.

MR NIALL:   What one gets from the explanatory memorandum very clearly is that subsection (2) is concerned to define the type and level of harm, not with whether it will occur or not, and when one looks at ‑ ‑ ‑

KIRBY J:   Why did Parliament do this?  Why did it go into the business of elaborating the meaning of the Convention except that it felt that tribunals and courts were getting it wrong?  Could you just explain what is the choice that courts were making and that this provision was designed to stop them doing?

MR NIALL:   It is not clear exactly what the vice was.  It is explained as the courts were identifying harm which fell short of harm that the Convention would protect against.  The point I was seeking to make by reference to the language of subsection (2) which resolves the ambiguity, in our respectful submission, in favour of our contention is this.  If your Honours go to section 91R(1)(b) it is clear that:

the persecution involves serious harm to the person.

So it is identifying the consequence of the persecution, harm and its level, serious, and when one goes to subsection (2) the language is very clear, in our submission.  It says:

the following are instances of serious harm . . . 

(a)      a threat to the person’s life or liberty;
(b)      significant physical harassment of the person;
(c)      significant physical ill‑treatment of the person;
(d)      significant economic hardship . . . 
(e)      denial of access to basic services -

and so on.  The point, in my submission, of subsection (2) is simply to define the types of harm that might constitute ‑ ‑ ‑

KIRBY J:   It is not defined because it opens with “Without limiting what is serious harm”.  It is to illustrate.

MR NIALL:   Illustrate or define in a non‑exhaustive way the types of harm, and what Justice McHugh was ‑ ‑ ‑

KIRBY J:   I just have not got in my head what Parliament was getting at here, and I infer that it was getting at a belief that tribunals and courts were not being rigorous enough and strict enough in the way in which they were approaching persecution.  Fear is in the now and present, but what is the fear?  It is of the fear that if returned to the country of nationality there will be persecution and it has to be well‑grounded now, but the persecution is in the future if returned.

MR NIALL:   And persecution contains a number of elements.  This Court has described it as involving a common thread that purpose, persecution and the nature of the conduct are all linked to make up the concept of persecution, and the only aspect that subsection (2) is directed to is a very limited one, in my respectful submission.  It is to define the types of harm.

If that submission is correct it follows, in my submission, that “threat” cannot mean that which found favour with Justice Marshall because the way that his Honour used it, as a risk or danger, is not an instance of harm.  It is an assessment of the probability or likelihood that harm will occur.  The relevant harm in that context is death, and the threat to life is the likelihood or possibility that death will occur.

GLEESON CJ:   Is it saying anything more than one form of serious harm is being put in serious danger even if nothing has happened to you?  The fact that there is serious danger to your life or liberty will constitute a form of serious harm even though you are okay for the moment.

MR NIALL:   But that requires the word “serious” to be read into (a) rather than seek (a) to define serious harm or provide an instance.

GLEESON CJ:   But is not (a) there to make the point that it is not necessary, as it were, to be injured before you have suffered harm?  The danger, the risk of harm, if it is to life or liberty, is enough.

MR NIALL:   With respect, no, your Honour, because what (2)(a) is directed to is the hypothesis of persecution occurring involving serious harm.  You have to identify, because it uses the word “persecution” rather than “being persecuted”, and it says “persecution involves serious harm”.  Persecution does not involve harm.  The harm is not “Your life is in danger”, the harm is not “You will be killed”, the harm is being killed and the threat is the likelihood or possibility it will occur, in my submission, and one can draw a distinction.

GLEESON CJ:   But if your life is in danger all sorts of nasty things happen.  You are afraid to come out of your house, you are afraid to communicate with other people?

MR NIALL:   Well, as is the case on our construction of the declaration of “menace”.

GLEESON CJ:   You construe 91R(2)(a) to refer to the danger that when you go back to where you came from people will say things to you?

MR NIALL:   People will, or persecutors will by words or conduct, evince an intention that they will kill you, and, we contend, includes as an element, the perception on the victim that the persecutor has that intent, and in my submission, it is a natural reading in this context to regard as harm the receipt of a threat to kill in circumstances where you believe the person is going to kill you.

KIRBY J:   You say that read in juxtaposition with (b) and (c) the reference in (a) to “threat” obviously means it is directed to the type of behaviour that will happen when you go back?

MR NIALL:   Yes, your Honour.

KIRBY J:   It can be physical harassment, it can be physical ill‑treatment, but it can also by way of contrast be a threat to life or liberty because that is an awful thing to happen to you and free societies and civilised countries do not allow that to happen, and if it has happened in the past then that is the sort of thing that can cause the well‑founded fear that it might happen again.

MR NIALL:   That is, with respect, our submission.

KIRBY J:   You are, as it were, giving of the meaning of a verbal threat, an oral threat, is because that fits more comfortably with the physical harassment and physical ill‑treatment which are in (b) and (c)?

MR NIALL:   That is so, your Honour, because one can see (b) and (c) physical harm, one can see in (d), (e) and (f) social economic harm and one can see in a mental harm, but ‑ ‑ ‑

GLEESON CJ:   What, on your construction, covers danger?  Where is danger listed in paragraph (2)?

MR NIALL:   The harm of death is inevitably serious harm and needed no qualification.

GLEESON CJ:   No.  What is it in the subparagraphs of paragraph (2) that cover risk or danger to life or liberty in cases where that risk does not involve any nemesis by words or conduct?

MR NIALL:   The relevant harm in that situation is death.  That is what the persecution would involve.  That is the allegation.  If I go back, I will be killed, and the Tribunal must assess – there is no doubt that that is serious harm, and the Tribunal must assess whether the fear is well‑founded.

KIRBY J:   You have to say, in answer to the Chief Justice’s question, that this is a non-exclusive ‑ it is a non-comprehensive definition but it is designed to give some things which maybe might not be thought to be and that far from cutting back on the scope of the application it is reminding the decision‑makers that the Convention is designed to cover such things as physical harassment or significant economic hardship and that these are things that maybe some decision‑makers will not think as coming within harm and for things like real perils, death, you do not have to define that because that is obviously within serious harm.  Is that how you put the case?  Is that what the issue is?

MR NIALL:   It is ‑ save for this submission.

GUMMOW J:   Now, where does what you are saying fit in or reflect the revised explanatory memorandum on the bill starting at paragraph 17 of the revised – not the original – the revised?

MR NIALL:   The revised, at paragraph 20 – perhaps ‑ ‑ ‑

GUMMOW J:   You have to start at paragraph 19, do you not?

MR NIALL:   Perhaps if I could start with paragraph 7.

GUMMOW J:   All right.

MR NIALL:   It is page 3.  I think there are two - paragraph 7.  Do your Honours have that, “The amendments in the Bill will”?

GUMMOW J:   Yes.

MR NIALL:   The first dot point is “clarify and define certain Refugee Convention matters’.  That is the first indication.  Then, over on paragraph 19, the explanatory memorandum refers to:

Claims of persecution have been determined by Australian courts to fall within the scope of the Refugees Convention even though the harm feared fell short of the level ‑ ‑ ‑

GUMMOW J:   What decisions?  What decisions are they talking about?  Do we know?

MR NIALL:   No, your Honour.  We do not.  It is not ‑ ‑ ‑

GUMMOW J:   For all I know Chan might be one of them.

MR NIALL:   It does not identify either by Court or by judgment what is being referred to and it is not at all clear, in my submission, how one tallies an intention to limit serious harm by imposing a non‑exhaustive definition of “serious harm”.  One could understand the parliamentary intention if it was persecution following instances of serious harm and only the following instances, but it is very difficult to discern, in my submission, how one gives effect to an intention to narrow by imposing a non‑exhaustive definition but ‑ ‑ ‑

GUMMOW J:   Where do we go from 19?

MR NIALL:   On to paragraph 22.  The draftsmen say that under paragraphs (b) and (c):

the persecution must involve serious harm to the person and systematic and discriminatory conduct.  New subsection 91R(2) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test -

So it is not, in my submission, talking about the probability of harm occurring.  It is only concerned to identify what the harm is so that if you say ‑ ‑ ‑

GUMMOW J:   Paragraph 24 is interesting.

MR NIALL:   Paragraph 23 and 24 are new.  I say “new” because they are new in the explanatory memorandum.

GUMMOW J:   Yes, they were put in later.

MR NIALL:   Paragraphs 23 and 24 in the revised are new and the purpose of the amendment is to clarify that it provides a non-exhaustive list of what is serious harm for the purposes of 1(b).  It also makes it clear that proposed paragraphs “do not prevent other things from amounting to ‘serious harm’”.  Then the examples ‑ ‑ ‑

KIRBY J:   Can I just pause there?  Is that statement, and the reference to what happened to the Jewish people in Nazi Germany, designed to indicate that for those who say that “Sticks and stones may break my bones, but names will never hurt me, words won’t touch me”, that a threat to people’s life and using words can, as experience teaches, sometimes be very hurtful and pregnant with the possibility that words may be followed up with action and therefore verbal threats are enough?

MR NIALL:   There is no doubt, in my respectful submission, that a person who receives a death threat in the circumstances, as we can see the threat in this case, would be entitled to flee rather than ‑ ‑ ‑

KIRBY J:   Wait around and see what happens.

MR NIALL:    ‑ ‑ ‑ wait around to see if it was carried out or for – I beg your Honour’s pardon.

HEYDON J:   The threats took place six years ago.

MR NIALL:   From today?

HEYDON J:   Yes.  Now, is that not a relevant matter in assessing whether there is serious harm in the sense of a threat to a person’s life?

MR NIALL:   Not in my submission.  The question for the Tribunal which was back in time and they were still relatively hot off the press but that would go to a question of merit rather than a question of meaning of “threat” ‑ ‑ ‑

GLEESON CJ:   No one doubts that the uttering of a menace can be evidence of the existence of danger.

MR NIALL:   That is a critical distinction which we seek to draw.  It is not merely evidence, in my respectful submission.  It is harm in itself because it instils ‑ ‑ ‑

GLEESON CJ:   Well, it may be, depending on the person who makes it and the circumstances in which it is made.

MR NIALL:   Depending on two things, in my submission, essentially; that the person who makes the threat intends that the person should believe that they intend a menace and secondly, that the person who receives it should believe or does believe that the person is going to carry it out.  In my submission, those two elements are inherent in a threat to life or liberty in a context of 91R(2)(a) and, in my submission, plainly would constitute serious harm.  It is not, in my respectful submission, a surprising construction to impute to Parliament ‑ ‑ ‑

GLEESON CJ:   But you say the error of the Tribunal decision-maker was that she concentrated on what was likely to happen to your client when he was returned to Sri Lanka whereas she should have concentrated, amongst other things, on what was likely to be said to him.

MR NIALL:   Yes, your Honour.  We certainly contend that the Tribunal had to look at whether the threats that had occurred in the past would be repeated if they were serious harm and it may be that the Tribunal concludes on the facts in a particular case that there will not be any such threats or that they would not engender in the applicant a fear that they would be carried out, but there is absolutely no reason, in my submission, why a person who comes to the Tribunal and says “I’ve received these death threats” and the Tribunal concludes “I think you will get them in the future and I think you will be in fear for your life and that is intolerable” that is serious harm, but it may not be persecution but it is serious harm.  There are other elements, of course, that must be satisfied before there is persecution for the Convention.

Can I just, in answer to your Honour Justice Gummow’s question, also note paragraph 25 of the revised explanatory memorandum and on the middle of the paragraph the statement that:

Persecution must constitute serious harm.  The serious harm test does not exclude serious mental harm.  Such harm could be caused, for example, by the conducting of mock executions, or threats to the life of people very closely associated with the person seeking protection.

Now, in my submission, that is directly analogous to what we contend is being picked up in paragraph (a), that form of threat.

KIRBY J:   Is there anything in the High Commissioner’s handbook to which we sometimes refer that will cast any light on this, given that you say the purpose is to give effect to the Convention, not to frustrate it.

MR NIALL:   No, your Honour, for this reason; that the handbook refers to the threat of harm in a context where it is plain to mean a risk of harm, in my submission.  But unusually, Parliament has done something which it had not earlier done, which was to isolate and define parts of the persecution complex.

KIRBY J:   Why has the Chief Justice said we have to give the word “threat” its meaning in its context and that context includes things which you would not maybe think were serious harm such as significant economic hardship, denial of access to basic services?  There would be people who would think they do not normally come within serious harm but Parliament is making it clear that for Australia such things do fall within it.  So you ask yourself, what does “threat” in that context mean?  All of them are, in a sense, threats of dangers when you go back so it cannot be that which is being meant.

MR NIALL:   There could be a threat of physical harassment.  The Minister’s construction would make a lot more sense, with respect, if paragraph 1(b) read, “the persecution involved serious harm or a threat of serious harm” but it does not.  It says “serious harm and the following are instances of serious harm”.  In my submission, the problem with the Minister’s construction, and the one that found favour with Justice Marshall, is that it is not an instance of harm.

KIRBY J:   Is this with the federal magistrate – is this the basis on which the federal magistrate found for the judicial review?

MR NIALL:   Essentially, yes, your Honour.  That appears at the appeal book, page 93, paragraph 33, where his Honour talks about a threat that:

could fairly engender in the mind of a reasonable person a reasonable apprehension that his or her life is genuinely at risk.

We identify as the essential elements of threat the communication of the hostile intent, that the communication has the capacity to carry that intent and that the victim perceives the persecutor to have that intent.

CALLINAN J:   Well, was not the consideration of all of these matters beside the point in view of the Tribunal’s findings that really, rejection of nearly all of his claims at page 77 of the appeal book?

MR NIALL:   No, your Honour.  The Tribunal accepted that he had received the threats as he ‑ ‑ ‑

CALLINAN J:   I do not think that is right.  Does not the Tribunal say at page 77 about line 12:

I have reached the following conclusions about the mistreatment he claimed to have experienced.  I am prepared to accept that the applicant might have received –

Now, in view of his earlier findings at page 77 rejecting practically everything that he said, it seems to me that the Tribunal was only considering the claims provisionally on the basis that if they were true they did not involve harm. 

MR NIALL:   On the hypothesis that they were true, that the threats were made, it ‑ ‑ ‑

CALLINAN J:   Yes, on the hypothesis, but on the hypothesis that he did not really have to consider.  He did consider it, but he did not have to in view of his adverse findings on credit.

MR NIALL:   Well, in our submission, only did not have to consider it because it was of the view that threats were not serious harm and that entails ‑ ‑ ‑

CALLINAN J:   Well, it is a difficult reading, that is all I can say of the reasons.

MR NIALL:   In my submission, the middle sentence in page 77:

I consider that the telephone calls and letters, while no doubt troubling, does not involve serious harm.

CALLINAN J:   Yes, but earlier he was saying “I am prepared to accept that [he] might have received”.

MR NIALL:   Then, in my submission, proceeds on the assumption of accepting that fact.

CALLINAN J:   Well, did he make it – well, you tell me where he made the finding that those events occurred as claimed.

GUMMOW J:   Look at line 18 too:

Even if it occurred as the applicant claimed ‑ ‑ ‑

MR NIALL:   That is relating to another incident concerning a van.  There were three, effectively, sets of incidents.  There were the telephone calls and letters, there was an incident where he got assaulted and then there was a later ‑ ‑ ‑

GUMMOW J:   All three are being treated on this basis that Justice Callinan is putting to you.  The phone calls and the letters by the words “I am prepared to accept”, and the van by “even if it occurred”.

CALLINAN J:   Then lower on:

Had there been a serious intent to harm him, I consider that those determined to do so could have watched and waited or seized –

He is rejecting him.

MR NIALL:   In my submission, not, with respect, but the Tribunal accepts and proceeds on the basis that the phone calls were made as alleged, and then says – and then proceeds to deal with the analysis in terms of its ‑ ‑ ‑

CALLINAN J:   Do you accept that if the position is as I have put to you – I know what you say about that – but everything that was said about threat and harm amounts to dicta, is that not right?

MR NIALL:   If, on a fair reading of the reasons, the factual basis of the threats did not occur, then the occasion to consider (2)(a) probably did not arise.  If it arose, if the facts gave rise to a consideration of the issue as we did, the question is, did it properly address the statute and we submit, with respect, it did not.

GLEESON CJ:   Mr Niall, a practical matter that I think was raised in the course of the special leave application and that I would like to hear your submission on is this.  There are countries in the world where robust political dialogue includes threats as a matter of course.  If your construction of this section is correct, what are the practical consequences of that?

MR NIALL:   The practical consequence is that the threats that an applicant fears or has occurred in the past for the purpose of working out need to be analysed in the context that we identify, that is, are the threats intended to convey an intention to kill?  Do they have that capacity and does the dictum perceive them?  Now, the frequency in general currency of political debate of wild threats perhaps would negative a finding on one or two of the bases.

GLEESON CJ:   But I am not sure why, because on your construction of the words “threat to life”, a threat to life is constituted by somebody saying in any circumstances, is it not, “I am going to kill you”?

MR NIALL:   Provided the maker intends to convey that intention?

GLEESON CJ:   Yes.

MR NIALL:   If that is what is intended and the recipient believes that their life is at risk, in my submission, it is serious harm.

GLEESON CJ:   Where do you get the necessity on your construction of the word “threat” for the recipient to take it seriously?

MR NIALL:   Because subsection (1)(b) requires there be serious harm to the person and we contend on the ordinary meaning of “threat” that it is an utterance with menace.  So the person uttering the statement carries with it the intent to menace and because it is serious harm to the person, it must have an effect on the person who receives it.

GLEESON CJ:   So everybody disavows, nobody suggests that the words “I am going to kill you” necessarily constitute a threat to life?

MR NIALL:   No, we disavow that, yes, your Honour.  We do not contend for that ‑ ‑ ‑

GLEESON CJ:   That seems to suggest that you want to straddle both elements.

MR NIALL:   No, your Honour.  What we are trying to construe, with respect, is what “threat” means in this context and we contend that it means a declaration or a communication with intent to kill.  But it has to bear certain characteristics for it to have that character.  Now, by contrast, the Minister contends that it has nothing to do with declarations of intent or communications of menace, it has to do with risk that a harm will eventuate.

GLEESON CJ:   A risk that may be evidenced by what people are saying.

MR NIALL:   A risk that may be evidenced, but it is any risk on the construction accepted by Justice Marshall.

GUMMOW J:   Now, what you want to do is reinstate your success before the federal magistrate, do you not?

MR NIALL:   Yes, your Honour.

GUMMOW J:   How did the federal magistrate deal with this factual basis?  Is it at page 92 under the heading “Discussion”, paragraph 28 of the decisions of the magistrate, “The actual finding” you see?

MR NIALL:   The findings of the ‑ ‑ ‑

GUMMOW J:   Page 92 of the appeal book.

MR NIALL:   Yes, your Honour.

GUMMOW J:   The heading “Discussion”, right?

MR NIALL:   Yes.

GUMMOW J:  

The actual finding made by the RRT . . . is as follows . . . 

I am prepared to accept –

Then 10 lines down –

I am also prepared to accept –

Then the last line on the page –

In my opinion, it is clear that the RRT accepted that the applicant had received threats to his life.

It does not spring off the page to me.

CALLINAN J:   It is just wrong, in my view.  The Tribunal did not do that at all.

KIRBY J:   It does say “I am prepared to accept”.

CALLINAN J:   No, he is prepared to accept might have, he says, and the Tribunal rejected in the previous paragraph all of his claims about the extent of his political involvement.

MR NIALL:   No, he did not reject all of them.  It was prepared to ‑ ‑ ‑

CALLINAN J:   Well, all of the substantial ones.

MR NIALL:   Prepared to accept that he participated in political rallies and things of that nature.

KIRBY J:   It goes on to say:

I am also prepared to accept that he was assaulted in December 2000/January 2001 ‑ ‑ ‑

GUMMOW J:   All for the purpose of considering some hypothesis about how the statute works, it seems to me.

MR NIALL:   No, with respect.  The Tribunal was required to make findings of fact in circumstances where sometimes findings of fact are not easy to make and the language that I am prepared to accept is really no more than a reflection of questions of evidence and proof are difficult in these cases, but I am prepared to accept that this is the factual matrix upon which the claim falls to be decided.

KIRBY J:   He goes on to say:

I consider that the telephone calls and letters, while no doubt troubling –

that means he accepts that they arrived –

does (sic) not involve serious harm.

So that is the essence of it.

MR NIALL:   That is how we would invite the Court to read the reasons as saying there may have been some doubt about the factual scenario, but these are the findings of fact that I am making for the purposes of determination and that is not unusual, in my submission, in a refugee context where findings of fact are difficult to make and the handbook suggests giving the benefit of the doubt and then having done so, proceeding on that factual scenario.

KIRBY J:   Did the Minister in the second reading speech that introduced this amendment to the Act say anything about its overall purpose, political objective or ‑ ‑ ‑

MR NIALL:   I am not in a position to assist your Honour on that.

KIRBY J:   Yes, well, no doubt Mr Hanks will have that at his fingertips.

MR NIALL:   I apologise, your Honour.

GLEESON CJ:   Mr Niall, would that be a convenient time to adjourn?

MR NIALL:   Yes, your Honour.

GLEESON CJ:   We will adjourn until 2.15.

AT 12.42 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:

GLEESON CJ:   Yes, Mr Niall.

MR NIALL:   If the Court pleases.  Can I return to a question the Chief Justice asked me concerning those countries where threats are prevalent, and answer the Chief Justice’s question in this way.  Where such threats are made in the way that we have articulated, they will constitute serious harm but they may not constitute persecution because serious harm is not to be equated with persecution.  It would require other elements to be present, including the purpose for which the threat was made and that it involved systematic or arise out of systematic and discriminatory conduct.  So it would be serious harm but not necessarily persecution and one of the matters on which threats would very commonly turn would be effective protection, particularly where there are non‑State actors making the threats.

GLEESON CJ:   I understand within your meaning of the word “threat” what would be a threat to life, “I’m going to kill you”.  What would be a threat to liberty?

MR NIALL:   By conduct or words indicating that the person would be imprisoned, kidnapped or otherwise lose their freedom.

GLEESON CJ:   I see.

MR NIALL:   Can I identify what we respectfully submit are three problems with the construction which found favour with Justice Marshall and direct the Court’s attention to appeal book 102 at line 15.  At that part of his Honour’s reasons at paragraph (15), line 20 his Honour articulates the construction proffered by the Minister and later in his reasons his Honour indicates his acceptance of it.  His Honour may be taken to accept that:

s 91R(2)(a) contemplates persecution involving an instance of serious harm which manifests itself as danger to life or liberty, as distinct from a possibility of danger.

In our submission, to construe “threat” in that way has three problems.  The first is that it is not apt to describe it as an instance of harm.  The second is that it would cover any danger to life and therefore would not achieve the evident statutory objective of identifying the type and level of harm.  So (a) on the Minister’s construction would be any threat or dangers to a person’s life and does not have the qualifications which are present in paragraphs (b) through (f); (b), by way of example, requires “significant physical harassment”.

GLEESON CJ:   The judge is just there repeating counsel’s argument.

MR NIALL:   Yes, your Honour.

GLEESON CJ:   His own views are expressed under the heading “Consideration” from page 106.

MR NIALL:   His Honour accepts at paragraph (35), line 24 on page 106:

The principles of statutory construction, applied to s 91R(2)(a), favour the definition of ‘threat’ advanced by the appellant.

So although your Honour, with respect, correctly identifies paragraph (15) as simply the identification of argument, his Honour at 106 adopts the construction proffered.

GLEESON CJ:   What do you say about his reasoning in paragraph (37) and following?

MR NIALL:   In our submission, there is no reason why threats in the form of declaration would not constitute serious harm because, on our construction, they do have the capacity to instil fear and the anomalous results articulated by his Honour in paragraphs (38) and (39) really do not, with respect, assist one choice of construction over another, bearing in mind that paragraph (2) is a non‑exhaustive definition simply saying that a threat to kill might engender fear in someone for whom it was not intended.  Now, that may mean that the maker of the threat did not intend to instil the fear.

The third reason we submit, that Justice Marshall’s construction ought not be adopted, is that it conflates the well‑foundedness of the fear of harm with the identification if the harm.  When one assembles the components, it requires a reading which says that there is a well‑founded fear or a real chance of a danger to life, and there is a doubling up, in our respectful submission, of those two elements.

Finally, if the Court pleases, can I submit that the essential error of the Tribunal is to fail to recognise that threats can be instances of harm within the meaning of (2)(a), even though the maker of the threats does not intend to carry them out, and a threat is not a mere evidence of harm, but harm in itself in context designed to repress or oppress the victim of the persecution.

In our submission, when one looks at the Tribunal’s reasons, particularly at appeal book 77, there is a consistent theme that the Tribunal is looking for physical harm or the threat of physical harm and has not turned its mind to the question of threats as an instance of harm in and of themselves.  For those reasons, the learned federal magistrate was correct to identify error on the part of the Tribunal - in our submission, it was jurisdictional error – and that those reasons do reveal a failure to properly interpret and apply that provision.  May it please the Court.

GLEESON CJ:   Thank you, Mr Niall.

KIRBY J:   You are not going to say anything now on the notice of contention point?

MR NIALL:   The notice of contention ‑ ‑ ‑

KIRBY J:   You might prefer to deal with it in reply.

MR NIALL:   Can I, with respect, answer it in this way, your Honour?  The notice of contention, as I apprehend it, is that on any view the Tribunal undertook the analysis which we contend that it was obliged to undertake.  Our answer to that is that the Tribunal never grasped with and dealt with the distinction between threats as harm in themselves and threats in evidence of harm.  So it comes back to the same point, in our submission, that the Tribunal misapplied the provision.  Unless there are any further questions, they are the submissions of the appellant.

GLEESON CJ:   Thank you, Mr Niall.  Yes, Mr  Hanks.

MR HANKS:   Your Honours, we do not disagree with our friends that there are two issues in the case.  The first focuses on the construction of section 91R(2)(a).  It does that because, as the federal magistrate recognised at appeal book 83, paragraph 8, there was one ground raised in the amended application for an order of review, and his Honour has set out that one ground as particularised in that paragraph.

The document itself – that is, the amended application – is not included in the appeal book.  That must have been an oversight.  We have copies here of the amended application which, as I understand it, was filed in court before the federal magistrate, and I have shown the document to my friend, Mr Niall, and he confirms that this is the document that was filed in Court.  It seems to us it would be appropriate if this were included in some way in the appeal book.

GLEESON CJ:   Thank you.

MR HANKS:   So we agree that the primary issue relates to the construction of subsection (2)(a).   That was said in essence to lie at the foundation of the jurisdictional error into which the Tribunal fell.  The second issue in the case is whether the Tribunal failed, assuming that the question that it should have asked was the question as posed by the appellant, whether the Tribunal failed to answer that question.  We would put it perhaps a little differently – whether the findings of fact made by the Tribunal inevitably gave a negative answer to that question.

Your Honours understand how the issue was joined between the appellant and the respondent; that is, as to the competing constructions of paragraph (a).  We say, as his Honour Justice Marshall said, that the reference in paragraph (a) to “a threat to the person’s life or liberty” refers to a risk or danger to that person’s life or liberty.  We dispute that the learned federal magistrate correctly construed the provision when he said that it referred to words spoken or written that declare a hostile intention against a person’s life or liberty, at least where the declaration of intention carries with it the prospect or leads to a reasonable apprehension that life or liberty is at risk, so it is in a sense or qualified or modified hostile statement.

There are a number of reasons why we submit that the construction for which we contend and the construction which was adopted in the Federal Court is correct.  The first of those ‑ ‑ ‑

KIRBY J:   Could you start by telling us a little bit about the history of the section, why it came in and what mischief it was intended to cure?

MR HANKS:   I can do no more, your Honour, than refer to the revised explanatory memorandum.  You have been taken to some of the paragraphs of that.  I can also refer to the Minister’s second reading speech.  We have had copies of the second reading speech provided to us over the luncheon adjournment and trust that we provided a number of copies to the Court of the second reading speech, if your Honour has it there.

KIRBY J:   Yes, did Mr Ruddock feel that the tribunals were being too broad in their view of ‘harm”?

MR HANKS:   If your Honour goes to page 30420, which is the very first page of the second reading speech, the Minister recognised what he described in the first column about point 7:

two critical challenges facing Australia’s refugee protection arrangements -

Then halfway down or perhaps point 4 of the way down the second column:

The second major challenge lies in the increasingly broad interpretations being given by the courts to Australia’s protection obligation under the refugees convention and protocol.

KIRBY J:   That is what led me to ask earlier whether you were contending that – in your written submissions you say that the tribunals are deciding matters contrary to the intentions of the parties to the Convention, and I wonder if - were you drawing a distinction – I always read your submissions very carefully because I know the subtlety of your mind, and I thought you might have been making a distinction between the intention of the parties to the Convention and what the Convention actually provides.  Was that ‑ ‑ ‑

MR HANKS:   I think what your Honour is referring to is a reference in our submissions to what was said in the explanatory memorandum.

KIRBY J:   What does it mean?  I mean, normally one would construe legislation designed to provide for the operation of the Convention to give effect to the meaning of the Convention as properly construed, not what maybe the parties going into the meetings had hoped would come out of them 50 years ago.

MR HANKS:   If your Honour has the revised explanatory memorandum paragraph 25, as we understand it, addresses that point where the memorandum says that:

The above definition of persecution reflects the fundamental intention of the Convention to identify for protection by member states only those people who, for Convention grounds, have a well founded fear of harm which is so serious that they cannot return to their country of nationality –

et cetera.  As we understand it, those who drafted the explanatory memorandum were expressing that intention that this Bill would give effect to what was understood to be the original intention of the parties to the Convention.  That is as far as we can take it, your Honour.  It is also clear from the second reading speech, if I might go back to that document, and I had, I think, got as far as the first page.  Your Honour will see in that second column a reference to:

In the absence of clear legislative guidance, the domestic interpretation of our obligations has broadened out under cumulative court decisions so that Australia now provides protection visas in cases lying well beyond the bounds originally envisaged by the Convention.

That is the same point that was made in the revised explanatory memorandum at paragraph 25, as we apprehend.

KIRBY J:   Have you, yourself, looked at the travaux of the Refugees Convention?

MR HANKS:   No, I have not, your Honour, and with respect, that is not necessary.  Essentially, one would construe 91R(1) and (2) according to their terms, of course understanding that their intention is to provide specific direction to those who must determine these matters, that is the decision‑makers, delegates of the Minister and the Tribunal – the Refugee Review Tribunal.

KIRBY J:   That is true, but as I have said now three times, normally you construe the statutory provision designed to implement a Convention so as to give effect to the Convention and if there is some ambiguity it is not unknown - this Court has done it itself in respect of the Refugees Convention - for a member of a social group to go back to the travaux.  However, let us pass on from that.  It is not perhaps important here.

MR HANKS:   In our submission, there certainly are parts of the Convention itself to which one would have regard in order to understand what significance should be attributed to the words used in subsection (2)(a), the word “threat” in particular.  We have dealt with that in our written submissions and indeed that approach was part of the reasoning that Justice Crennan adopted when her Honour was a member of the Federal Court.  In dealing with this very matter her Honour had regard to Articles 31 and 33 in giving a particular meaning to the word “threat”.

GLEESON CJ:   What is the reference to her decision?

MR HANKS:   Her judgment, your Honour, is VBAS v Minister 141 FCR 435.

KIRBY J:   You quote that in paragraph 27 of your submissions to the Minister.  Her Honour says:

common sense dictates that there is a distinction to be made between a real or genuine threat to cause harm or a hollow threat to do so.  There is also a distinction to be made between a threat to kill intended to be acted upon, and a threat to kill intended to intimidate, but not to be acted upon.

The problem I had with that when I read it was how does the subject of the threat know, in a violent or semi‑violent situation, as sometimes Sri Lanka has been.

MR HANKS:   We would understand, your Honour, that there is a substantial objective element involved here and the state of mind of the person who is the subject of the communication – I take it that is what your Honour means by “threat” in this context – the person’s state of mind is not determinative.  What is required here is a situation, we say, of risk or danger which can be determined objectively in much the same way as the Tribunal made that determination in the present case.  The Tribunal did make a determination, objectively, that there was no real danger or risk to the safety of the present appellant.

When I had referred to her Honour’s judgment in that case I had in mind an earlier part of her Honour’s judgment.  In paragraph 23 her Honour refers to Articles 31 and 33 of the Convention with their references to “life or freedom being threatened” and it is our submission that for her Honour’s resort to those articles in understanding what it was that a Parliament had in mind when it prescribed part of a content of serious harm, for that is what subsection (2) does, it prescribes part of a content for that concept, her Honour’s approach to that issue is entirely correct, with respect. 

Your Honours, I would also refer, if this is of any assistance, to page 30421 of the Hansard which deals in a little more detail with what became section 91R.  At the bottom of the first column:

The bill will define the fundamental convention term, persecution, as an appropriate test of serious harm.

Then, in the second column at about point 3 there is an extended discussion of what the Minister saw as the justification for the amendment which became section 91R.

GLEESON CJ:   Just before you leave Justice Crennan’s decision, she regarded the concept of “threat” as meaning risk or danger as being a broader meaning of “threat” than the rather narrower concept of a declaration of intention to harm.

MR HANKS:   We do not quarrel with that, your Honour, although that inquiry and that conclusion must be qualified, as Justice Kirby suggested, on account of the fact that the items in the catalogue in subsection (2) are not exhaustive.  For that reason it might be said that a narrow or broad meaning attributed to paragraph (a) would not necessarily exclude other examples, or cannot exclude other examples of threats of serious harm.  We, with respect, would rely on the observation that your Honour the Chief Justice made at the very commencement of this case, that 91R takes its place in a statutory scheme which is directed to identifying whether something will happen in the future.

It does this because the question to be determined in all of these cases is whether the applicant qualifies for a protection visa according to the criteria referred to in section 36(1).  Section 36(1) through its somewhat awkward expression picks up the definition of refugee in Article 1A of the Convention so that the question to be determined is whether the applicant has a “well‑founded fear” of persecution for a Convention reason if returned to his or her country of nationality.  It is purely a prospective question.

GLEESON CJ:   Which is the section that gives effect to what is sometimes called non‑refoulement, the section that says you will not send them back?

MR HANKS:   The article in the Convention is Article 33.  That gives, one might think also, particular strength.  Perhaps that is the very provision in the Convention which gives strength to the obligation that is identified in section 36 of our Act for otherwise all we have, it would seem, is a definition of who is a refugee in the Convention.

GLEESON CJ:   Yes.  Article 33 is sometimes said to be at the centre of the scheme of the Convention.

MR HANKS:   Yes, it is obligatory provision, we would think.  Because the focus of the decision‑maker has to be on what does this person fear for the future and is that fear well founded, then the way 91R works, we would submit, is that in undertaking that assessment the decision‑maker must be satisfied that there is a well‑founded fear that there is a non‑remote chance of serious harm, at least.  That is an essential part of the question.  It is made essential by section 91R(1)(b).

For that reason, when we come to the examples of a content of that serious harm of which there was said to be, putatively, a well‑founded fear, the natural meaning that we would give to the words “threat to life or liberty” must be danger or jeopardy to life or liberty in the future.  It would not be, we would suggest, sufficient to invoke paragraph (a), killing out, as it does, subsection (1)(b) or part of subsection (1)(b), it would not be sufficient to say this person has a well‑founded fear that if returned to his or her country of nationality he or she will receive threatening letters.  That would not be, in our submission, consistent with the objectives of section 36 and Article 1A and, of course, Article 33 of the Convention.

KIRBY J:   I take the force of what you are saying but my problem is purely a textual one, that if you go to 91R(1)(b), the “serious harm”, that takes you to (2) and then you come to (2) and (2) is not an exhaustive list but then the mind tries to find what are the common features of the sub‑classes in this non‑exhaustive list and then you look down the list and you see:

(b)      significant physical harassment of the person;
(c)      significant physical ill‑treatment –

and then these more curious ones that you might not have originally thought as coming within ‘serious harm” -

(d)      significant economic hardship . . . 
(e)      denial of access to basic services –

and so on.  So it is in that context that you have to ask what is the threat to the person’s life or liberty and, at least to my mind, it seems arguable that that is referring then to the fact that we will not tolerate in Australia threats to people’s life or liberty and we will not require that people go back to countries where threats – verbal threats, oral threats – to their life or liberty occur because that is the sort of thing that Parliament has gone to the trouble of listing amongst this catalogue of odd and non‑exhaustive instances of serious harm that Parliament has deemed to be serious harm.

MR HANKS:   Could I, with respect, cavil at what I understand your Honour to be saying, namely, that the entries in the catalogue, (d), (e) and (f), might be novel.  We would not have thought so, your Honour.  We would have thought that denying a person by reason of that person’s race or religion or political persuasion ‑ ‑ ‑

KIRBY J:   No, but leave that aside ‑ ‑ ‑

MR HANKS:   ‑ ‑ ‑ the opportunity to earn a living would readily be accepted as prior to the enactment of this ‑ ‑ ‑

KIRBY J:   Significant economic hardship plagues 80 per cent of the world.

MR HANKS:   But it has to be significant economic hardship threatening the person’s capacity to subsist and it has to be imposed by reason of ‑ ‑ ‑

KIRBY J:   For reason of, and then ‑ ‑ ‑

MR HANKS:   For the essential and significant reason of a Convention ground, and it has to involve “systematic and discriminatory conduct”.  We are told all of that in subsection (1).  With respect, we would have thought that these matters that are referred to in subsection (2) are not novel, that they have been a feature of refugee law and the rights of those claiming refugee status for decades.

KIRBY J:   Would it be a wrong way to approach this to say, “Well, Parliament had a go at this.  I would infer that they were trying to make it a bit harder for people to get refugee status and protection visas, but if they don’t make it clear, I’m just going to go back to the words that are used and the purposes of the text and the purpose of the Convention”.

MR HANKS:   It would be a very, we would say, prudent way to approach the matter.

KIRBY J:   Did you say “crude”?  What was the adjective you used?

MR HANKS:   No, I said “prudent”, your Honour; commendable, with respect.  The motivation perhaps is a different matter, whether you think Parliament has been inelegant or incomplete, but I am putting that on one side, your Honour.

KIRBY J:   I am trying to see the mischief.

MR HANKS:   Always one would go to the terms that are used, having regard to the context in which they appear.  I will go back to the point which, as I understood it, his Honour the Chief Justice made at the very opening of my friend’s submissions before lunch, that the function which 91R is performing is to, in our submission, add flesh to the concept of persecution, to give it particular content and relatively defined content, more defined than prior to the enactment of 91R, and when that is borne in mind, then the construction for which we are agitating we would say is the correct construction.

What the particular paragraph (a) with which we are concerned is focusing on, we submit, is some objective risk, some objective danger, to the person’s life or liberty sufficient to allow a conclusion that the person would face serious harm if the person were sent back to his or her country of nationality.  We would say that that reading is not only consistent with the underlying objective which this section serves; it is consistent with the language used in paragraph (a) ‑ ‑ ‑

KIRBY J:   Except that in (b), (c), (d), the word “significant” appears, and it would have been so easy to say “a significant threat to the person’s life or liberty”, but instead Parliament just left it as a threat.

MR HANKS:   With respect, your Honour, that would not have added anything to the argument which we advance, to describe the threat as significant.  It still remains, in our submission, the proper reading of paragraph (a) that it refers to danger or risk.  But I wanted to draw some comfort from the construction of paragraph (a).  It is a threat not to the person, but a threat to the person’s liberty or life.  It is a threat to a thing and, as we put it in our written submissions, that readily connotes a risk or danger rather than a communication.  We would also, as your Honours note, draw some comfort from the use of the word “threatens” in (d), (e) and (f).  Again, “threat” is used in this sense of threat to a thing, a threat to the person’s capacity to subsist, something that threatens the person’s capacity to subsist.

We have also made the point in our written submissions that this understanding of the use of the word “threat” is entirely consistent with the way in which members of this Court explained the content or teased out the content of the term “persecution” in Chan’s Case, but your Honours will no doubt have followed the exchange between his Honour the Chief Justice and my learned friend, Mr Niall, in the context of Chan’s Case, so we do not need to repeat that.

GLEESON CJ:   Well, it is a very familiar use of the term.  As Edmund Burke said, “I thought a thousand swords would have flashed from their scabbards to avenge even a look that threatened her with insult”.

MR HANKS:   Yes, your Honour, entirely.  It is for that reason that we say that Justice Marshall’s construction was correct.  We think that that construction is found primarily between paragraphs (37) and (42).  Perhaps his Honour’s acceptance of submissions made before him by the present respondent was not intended to embrace everything that his Honour has set out in paragraph (15).

I do not think that his Honour on reflection would necessarily endorse the notion that the threat referred to in paragraph (a) cannot encompass the possibility of danger, particularly in the setting of the discharge of Australia’s obligations under the Convention, for a possibility of danger is very much what the Convention is addressing, so long as that possibility leads to a well‑founded fear.

But if we turn to paragraphs (37) through to (42), it is clear that his Honour had in mind that a threat to a person’s liberty or life as referred to in paragraph (a) would be some action or conduct.  Now, the action or conduct might be evidenced by a communication.  The action or conduct might include within it a communication.  But what is critical is that there is action or conduct which, as his Honour puts it, endangers or puts in jeopardy the applicant’s life or liberty.  Then of course the question has to be answered “whether the fear which attends this conduct or action and the chance of its reprisal, is well‑founded”.  There I am quoting from what his Honour said in paragraph (42).

CALLINAN J:   Mr Hanks, even if one were to accept that the findings of fact have been made, as Mr Niall submits, would they have satisfied subsection 91R(1) of the Act?  Is there a systematic conduct that it involves serious harm to the person and on the findings was membership of a political group or the holding of a political opinion the essential and significant reason for what happened?  All three conditions have to be satisfied.

MR HANKS:   Absolutely, yes.  Each of them a necessary, although not sufficient, component.  It would appear to us that implicitly the Tribunal has disposed of the systematic and discriminatory aspect.

CALLINAN J:   Just take it for present purposes that ‑ ‑ ‑

MR HANKS:   We have disposed of that but we think implicitly, although they have said nothing explicit about it, they have explicitly disposed of the serious harm but that is the very conclusion which is expressed in appeal book 78.

CALLINAN J:   If that is right there is no jurisdictional point.

MR HANKS:   I think my friend would say that ‑ ‑ ‑

CALLINAN J:   Either 91R(1) is satisfied or not and it has to be satisfied.

MR HANKS:   Yes.  I think my friend would say, if I might speak for him - no doubt he will correct me when he gets the chance - that one possible component of serious harm is that which is prescribed by subsection (2)(a) and ‑ ‑ ‑

CALLINAN J:   But it still has to be for the essential and significant reason of political – for political membership or political opinion as the essential and significant reason.

MR HANKS:   I appreciate that, your Honour.  There are, we would have thought, sufficient findings of fact to make it inevitable that the Tribunal came to the finding of fact that – even if my friend is right on the construction of paragraph (a), that it refers to communications which might reasonably be understood and were understood as posing a risk, if that is the way in which it should be construed the findings made on page 77 of the appeal book would be sufficient to dispose of the case.

Let us assume, as my friend Mr Niall submitted, that there was a finding that the applicant received intimidating and threatening telephone calls and a finding that he was assaulted in December 2000 but – the Tribunal goes on to say that:

the telephone calls and letters, while no doubt troubling, does not involve serious harm.  I consider that the evidence indicates that the assault was an isolated incident, followed by no further attempt to harm him.  I note that I found the applicant’s evidence about the incident involving a van . . . unconvincing.  Even if it occurred as the applicant claimed, if all that was done was what he said then it too is not in my view harm in my view of a severity so as to constitute persecution.  I am not satisfied that the applicant was in hiding as he claimed -

Then perhaps the most critical sentence:

Had there been a serious intent to harm him –

the applicant –

I consider that those determined to do so could have watched and waited or seized the moment when he was spotted instead of driving on as his evidence indicated occurred.

KIRBY J:   The lesson of the Nazis was that they sometimes liked to play with their victims.  Persecutors tend to do that, you know.

MR HANKS:   There are a lot of lessons to be learned from Nazis, your Honour, but ultimately, the finder of facts has to deal with the facts as presented and here there are sufficient findings, we would say, to exclude

serious harm and also to exclude systematic and discriminatory conduct.  Those findings of fact, in our submission, make a conclusion on either subsection (1)(b) or (c) not open.

In the same vein the Tribunal made a finding that it was unconvinced by the applicant’s evidence as to why he did not report the incidents to the police and that then led on to the ultimate finding of fact that the chance of the applicant coming to serious harm if he were to return to Sri Lanka was remote.  That is the ultimate finding, we would think.  That would dispose of the application for a protection visa.  If there are no other questions, your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Hanks.

KIRBY J:   I just have one little question.  A question was asked earlier, I think by Justice Heydon, concerning the proper time of the consideration of the matter.  We would have to consider whether Justice Marshall erred in correcting the magistrate by reference to what the Tribunal did at the time it did it, did it not, because there have been I think at least – there has been one and may be two elections in Sri Lanka and many developments since then but we are not concerned with that, are we, we are concerned with whether at the time the Tribunal decided the matter it addressed itself on the facts as then standing to the correct understanding of the statute.

MR HANKS:   Of course.  The question for the Tribunal was does the applicant have a well‑founded fear of persecution if returned to his country of nationality.  That has to be decided, of course, on the material before the Tribunal rather than on other material that might now be discovered to have been available at the time, but, essentially ‑ ‑ ‑

KIRBY J:   Or to be available since because I do not know which party is in government, now.

MR HANKS:   Even less so could we have regard to that.  One could only have regard to the material before the Tribunal in answering that question and that material must necessarily address the contemporary situation at that time.  We are certainly not looking at it through the 2006 prism.  Your Honours.

GLEESON CJ:   Thank you, Mr Hanks.  Yes, Mr Niall.

MR NIALL:   Very briefly, if I may, your Honours.  The reference that her Honour Justice Crennan made to Articles 31 and 33 does not assist the argument in my respectful submission because Articles 31 and 33 are plainly concerned with threat of harm and the phrase “threat of harm” is a commonplace in learnings in relation to refugees, but our essential submission is that 91R is concerned not with that compound conception of threat of harm but to identification of the nature of the harm.  They are the only matters in reply.  May it please the Court.

KIRBY J:   Have you said everything you want to say about construing paragraph (a) within the context of the three elements in (1)(a), (b) and (c)?

MR NIALL:   We do concede that you need all three elements – that persecution comprises all three elements but that 91R(1)(b) is not concerned with anything more than identifying the type and level of harm rather than whether it is to occur.

KIRBY J:   But is it an argument against your construction of “threat” in (2)(a) that it is a word that has to be giving meaning in the context of tightening up of requirements for persecution in (1) which includes (c) “systematic and discriminatory conduct”, that the suggestion is that given that context that your rather narrower view of threat does not fit so comfortably as the wider view of threat.

MR NIALL:   In my submission, threat might still constitute serious harm because it instils fear in the victim but it might not be persecution because it might not arise out of a systematic or discriminatory conduct and that one builds each block together, whereas the authorities in this Court clearly establish that before 91R one looks at persecution as a compound conception, one influencing the other.  In our submission, 91R represents a departure from that approach, to isolate one from the other the various elements.

The very issue that 91R(1)(b) is concerned, and (2), is simply to identify harm, not to deal with the other elements which will need to come together once that level of harm is identified.  So we do not read down the level or type of harm by reference to the fact that it must be discriminatory or systematic.

GUMMOW J:   It is not a question of reading down because they may overlap, may they not?

MR NIALL:   Not in my submission, because “significant physical harassment” stands apart from the question of whether it is systematic and discriminatory, certainly whether it is discriminatory, and one would identify – you have to have at least “significant physical harassment” and it has to arise out of “systematic and discriminatory conduct” but the fact that it is “systematic and discriminatory” would not, in my submission, change the character for the purposes of, for example, paragraph (b).  In my submission, that does represent a departure from the approach without 91R which would be to look at them as a compound conception, as a number of

the Justices of this Court have described it as and we have put some references to that in our written submissions.  They are the only matters I wish to address.  May it please the Court.

GLEESON CJ:   Thank you, Mr Niall.  We will reserve our decision in this matter.  We will adjourn for five minutes just to enable people to get their papers in order for the next case.

AT 3.10 PM THE MATTER WAS ADJOURNED