VBAO v MIMIA & Anor

[2006] HCATrans 273

[2006] HCATrans 273

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M210 of 2004

B e t w e e n -

VBAO

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 JUNE 2006, AT 2.18 PM

Copyright in the High Court of Australia

MR R.M. NIALL:   May it please the Court, I appear for the applicant.  (instructed by Arnold Bloch Leibler)

MR C.J. HORAN:   May it please the Court, I appear for the respondent.  (instructed by Clayton Utz)

GLEESON CJ:   I think there is a submitting appearance for the second respondent.  Yes, Mr Niall.

MR NIALL:   If your Honour pleases, this application raises for consideration the correct construction of section 91R of the Migration Act which seeks to isolate and define certain terms of the Convention definition of “refugee”.  The application for special leave raises, in my submission, two important issues.  The first is the correct construction of the phrase “a threat to the person’s life or liberty” in paragraph 91R(2)(a) and the second and more general is the extent to which section 91R alters or affects the definition of “refugee” within the Convention. 

As to the first aspect, it is my submission that “threat” in paragraph (2)(a) means a declaration of an intent to harm.  That is its ordinary meaning and, in my submission, that is the meaning which is carried in the section.  The Federal Magistrate, at first instance, was correct to so find and his Honour Justice Marshall on appeal was, in our submission, in error to reverse it.  His Honour found – and the most convenient place to find his Honour’s articulation of 91R(2)(a) is at application book 46, paragraph (42) where his Honour Justice Marshall held that:

The process involves an assessment as to whether the conduct or action relied on . . . endangers or puts in jeopardy the applicant’s life or liberty –

So his Honour construed the phrase “threat” as endangering or putting at risk life or liberty.

GLEESON CJ:   I understand that it is common ground, or at least I got the impression from reading the papers that it is common ground, that whether there is a threat within the meaning of the section does not simply depend on what was actually said.

MR NIALL:   That is so, your Honour.

GLEESON CJ:   What more must there be?

MR NIALL:   A threat must carry with it the capacity in a reasonable person to instil fear.

GLEESON CJ:   That depends on the circumstances, presumably?

MR NIALL:   It does depend on the circumstances, but we are looking at one aspect of the definition and what is required is objectively that the threat is capable of instilling fear.

GLEESON CJ:   That depends on a combination, I suppose, of what is said and the circumstances in which it is said.

MR NIALL:   That is so, your Honour, with respect.

GLEESON CJ:   I do not imagine I am revealing any secrets when I say that judges get a lot of threats from time to time but often they do not have the capacity to instil fear because the people that make them are in a secure circumstance.

MR NIALL:   That may be so, your Honour, so the circumstances in which the threat is made is, or may be, significant in the circumstances but what one is dealing with, in my submission, at this particular point in time is simply the harm that is feared and it is the threat that constitutes the harm because it is the threat which has the capacity to instil fear and it is, in my submission, the classic medium of the persecutor to threaten people, not necessarily to kill them, because the persecutor is largely minded to repress or to alter the expression of political or religious opinion, or whatever the particular aspect is, so it is that capacity to instil fear which is critical to the operation of the division and that is why, in our submission, the construction which we advanced is apt for paragraph (2)(a).

HAYNE J:   I understand that you say that Justice Marshall does not apply that test.  Where do we find in the Tribunal’s reason the Tribunal asking the wrong question or applying the wrong legal principle?  That is where do we find jurisdictional error?

MR NIALL:   In my submission, the process of reasoning for the Tribunal was to look back at the past and ask itself was there serious harm.  Now, in its analysis at that point in the reasons there was no discussion, no mention of paragraph (2)(a).  Your Honours will see at page 12 of the application book, line 13 is the acceptance by the Tribunal of the claim that:

the applicant might have received intimidating and threatening telephone calls and letters . . . 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:   That is just repeating the formula of the statute, is it not?  That sentence, “I consider that the telephone calls . . . does not involve serious harm”, is simply a finding expressed in terms of the statutory provision.

MR NIALL:   It is the conclusion reached, but the previous sentence indicates that it does not display the characteristics necessary for it to constitute persecution.  In our submission, that could only have been informed by a misconstruction of paragraph (2)(a), on our construction of the provision.  If the construction favoured by Justice Marshall is correct, those reasons can be explained as an analysis of whether or not the telephone calls engendered or risked safety.

GLEESON CJ:   It may be perhaps unfair to the Tribunal member to think that what she was saying there was, unless the telephone calls actually hurt him, it does not satisfy the statutory provisions, because she is dealing with a statutory provision that requires a finding about serious harm and she makes that finding in terms of the statute.

MR NIALL:   The difficulty with accepting that proposition, with respect, is that serious harm has always been seen to be an element of persecution. The cases in this Court make that abundantly clear.  So for a Tribunal to express itself as talking about serious harm does not indicate that it is reflecting the statute, and I acknowledge that in application book page 3, line 13 the Tribunal specifically makes mention of 91R.

GLEESON CJ:   I do not know if you have the same problem as we have but we have a multiplicity of different numbers on these pages, Mr Niall.  The page that I have just been looking at has page 12 and then 13 up in the top right‑hand corner and then it has page 52 in handwriting.

MR NIALL:   I apologise, your Honour.  The page I was taking your Honours to was at the top right‑hand corner is 12.

GLEESON CJ:   Yes, we have that.

MR NIALL:   Then I was just noting, your Honour, at page top right‑hand corner 3 ‑ ‑ ‑

GLEESON CJ:   Beginning “The High Court has”?

MR NIALL:   ‑ ‑ ‑ line 12, “Second, an applicant must fear persecution”.  There is a specific mention of 91R, I acknowledge that, your Honour, but, in my submission, when one comes back to the analysis on page 12 there is a good argument, in my respectful submission, that the Tribunal was treating the requirement as Justice Marshall perceived it, which is having to show at that stage of the statutory formulation that the threats engendered or caused a risk.

HAYNE J:   If your definition is right, that is, capacity to instil fear, presumably you say there is no consideration of whether there was capacity to instil fear; you had only “while no doubt troubling”.

MR NIALL:   That is right, your Honour, with respect.  That is what we submit, that what is happening at that stage of the analysis is it is ruling out the telephone calls because of their characteristics, and that analysis, in my respectful submission, is built upon a misapprehension of paragraph (2)(a).

GLEESON CJ:   Would you add to capacity to instil fear “and in fact instils fear”?

MR NIALL:   No, your Honour, because “in fact instil fear” is a part of the analysis which is going to be picked up on whether there is a subjective fear.

GLEESON CJ:   There may be some overlapping of considerations, but how do you deal with a person, perhaps recklessly, who does not take nay notice of threats, is unaffected by them?

MR NIALL:   It would be very difficult, if not impossible, for that applicant to succeed on the basis of any subjective fear of persecution because what happened to him in the past was a matter of complete indifference to him.  That is one of the difficulties, in my submission, with 91R in its totality which this case raises.  It raises it in the specific aspect, in my submission, of threat, but 91R is a very significant departure from the course that had been adopted by the Parliament because the Parliament had not seen fit to define the elements of persecution.

This Court has held in a number of cases that one cannot isolate the definitional elements, one cannot look at serious harm absent the cause, the reason for it and absent whether it is systematic and repetitive and discriminatory.  If could take your Honours to page 39 at the top right‑hand of the book, section 91R is set out in the reasons for judgment of Justice Marshall.  Paragraph (1), in not uncomplicated language, says that:

For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) . . . does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless –

(a) deals with motivation, (b) deals with the involvement of serious harm and (c) deals with systematic and discriminatory conduct.

GLEESON CJ:   What would be the practical difference between a test of (2)(a) that says – and just humour me for a moment in what I am about to add to what you said – menacing language which in the circumstances is capable of inducing fear and induces fear – let me call that test A – and test B which says menacing language which carries with it a real risk of actual harm?  What would be the practical difference between those two tests?

MR NIALL:   Both would constitute persecution, in my submission, so at that level both would involve serious harm.  On Justice Marshall’s construction, in my submission, the former would not because you would have to make an additional assessment of the probability or the likelihood that the threat would be carried out.  In my submission, the distinction here is analogous to threat to kill at common law.  It is the threat itself that constitutes the offence and its effect on the victim rather than its necessary capacity to produce the death or physical injury or, in this case, imprisonment to the person.  That is why we submit a threat as the harm is a very important element of the Convention and it is reflected.

GLEESON CJ:   One of the practical problems we have to bear in mind I think is that there may be some places in which threats are a routine aspect of political dialogue.

MR NIALL:   If there was a subjective fear and if there were systematic and discriminatory conduct, then there is no reason, in my submission, that that would not amount to persecution.  You would have to deal with the future assessment of the well‑foundedness of the fear and the subjective fear, but in S395, the case of the discreet Bangladeshi homosexual, Justices McHugh and Kirby emphasised that in persecution it is most often the threat with its menacing implications which persuades, forces people to modify their behaviour.

GLEESON CJ:   It is the case, is it, that even if one satisfies the requirements of paragraph (2)(a), you still have to go further and show that there is persecution?

MR NIALL:   Yes, your Honour.

GLEESON CJ:   In other words, this is a sort of barrier that you have to clear but the fact that you have cleared the barrier does not mean you are home.

MR NIALL:   Yes, that is exactly right, your Honour, with respect.  It is an element and it is not an element which, absent 91R, the Tribunal would be required to analyse because the Convention does not require that articulated approach.  Section 91R requires it and produces, in my respectful submission, anomalous results, potentially.

GLEESON CJ:   Then what do you say about the sentence that I think you have already been taken to on page 12, lines 13 to 15?

MR NIALL:   The question becomes what is meant when the Tribunal speaks of the characteristics necessary.

GLEESON CJ:   But the ultimate fact that is in issue is whether or not there is a well‑founded fear of persecution.

MR NIALL:   Yes, your Honour, that is the ultimate test for the Tribunal.

GLEESON CJ:   And insofar as the well‑founded fear of persecution is said to be based upon menacing language that has been used in the past, presumably because that is evidence of what is likely to happen in the future, even if it satisfies the description of threat for the purpose of this particular provision, ultimately, you still have to make a finding of well‑founded fear of persecution, because this section just says it does not amount to persecution unless something exists, but it does not say, does it, and if that exists it does amount to persecution?

MR NIALL:   The answer to that, your Honour, is that it does amount to persecution if you satisfy each of the elements of (a), (b) and (c).  That is not to say that the person is a refugee because – the Convention, Article 1A, does not use the word “persecution”, it says “a fear of being persecuted”, but persecution is one element.  It has to be for the Convention reason.

GLEESON CJ:   We are all accustomed, because it is common sense, to ask whether there is a well‑founded fear of being persecuted by looking at what has happened to you in the past, but that might tend to distract attention from the fact that the ultimate question is a well‑founded fear of what is going to happen to you in the future.

MR NIALL:   Yes, your Honour, I accept that, with respect.

GLEESON CJ:   And where you are making as the basis of your case of well‑founded fear of what is going to happen in the future some menacing things that have been said to you in the past, then are not the matters that the Tribunal took into account relevant?

MR NIALL:   In my submission, what the Tribunal had to ask itself – what the Tribunal did is it said no serious harm in the past and then flipped it over and said no serious harm in the future, and it is looking to the future that it had to apply (2)(a) and, in my submission, it had to go through the analysis of looking at the individual elements because that is the test or the requirement that (2)(a) posits, which is new and it is definitional, in my submission.  It constitutes a significant departure from the law and, in my submission, it is an appropriate vehicle for this Court to analyse its implication and its potential departure. 

Just to conclude on its general application, at page 45, paragraph (36) of Justice Marshall’s judgment his Honour noted that:

Section 91R is a relatively recent addition to the Act, designed to set the parameters and raise the threshold of what can properly amount to ‘serious harm’ –

So 91R is, in the judgment of his Honour, a significant narrowing of the Convention.  That represents a very significant matter and, in my submission, it is appropriate – in our submission, it is not right because serious harm has always been in the mix, if I could use that phrase, and the definition is not exhaustive, so it is difficult to see how it exhausts serious harm, but, in my submission, the interaction between the specific construction and the general approach to 91R makes this case a suitable case for the grant of special leave.  May it please the Court.

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

MR HORAN:   Your Honour, this case is presented as a contest between two competing meanings of the word “threat” in section 91R(2)(a), which might be described as the general meaning which is contended for by the Minister of a risk or danger to a person’s life or liberty, and the specific and, I would say, narrower meaning contended for by the applicant of a declaration of intention to harm constituted ‑ ‑ ‑

GLEESON CJ:   I do not think the applicant’s case is quite that simple.  I think your opponent has agreed that mere words cannot amount to a threat; you have to look at the circumstances in which they are uttered.

MR HORAN:   Yes.  Once that is recognised, then on either approach to the construction of the section it is necessary for the fact‑finder to look at the particular circumstances and to examine the nature of the threats made and the circumstances in which those written or oral threats were made in order to assess whether or not they constitute serious harm, firstly, and then, more generally, persecution involving serious harm.  That is consistent with the approach which was reached at first instance by the learned Federal Magistrate. 

Your Honours, his reasoning which is contended for by the applicant on this application is at application book 31 to 32, using the numbers at the top right‑hand corner.  His Honour accepted a concession by the applicant that “the threat constituted by the words or actions must be a real threat”, what was described as “a real threat”, and that was elaborated by reference to a requirement that the threat fell:

within the meaning and contemplation of section 91R(2)(a) if the words spoken or written, or the actions taken, could fairly engender in the mind of a reasonable person a reasonable apprehension that his or her life or liberty is genuinely at risk.

GLEESON CJ:   Where is that?

MR HORAN:   This is at application book 31 to 32 in paragraph (33) of the Federal Magistrate’s reasons.  His Honour then goes on to note that it is relevant to look at “the degree of actual risk faced by the person” and to “The form of the threat and the capacity of the person or persons making the threat to actually carry it out”, and all of those factors being relevant to determine simply whether or not the specific threat falls within the meaning and contemplation of section 91R(2)(a).

HAYNE J:   Do you dispute that if that meaning were to be adopted the consequence found by the Federal Magistrate at 35 of jurisdictional error would follow?

MR HORAN:   That is a leap which, in my submission, should not be taken because even accepting the approach taken to the construction of section 91R(2)(a) that the Federal Magistrate took, when one looks at what the Tribunal actually did, it did look at factors such as the circumstances in which the threats were made, the number of the threats, implicitly, the degree of risk involved in the making of those threats, their form, the persons who made them and so on.  It was only in the context of all of the circumstances of the particular case that the Tribunal found that those threats did not exhibit the characteristics necessary for them to constitute persecution and, in particular, “the telephone calls and the letters, while no doubt troubling, [did] not involve serious harm”.

Again, those findings have to be read in the context in which the Tribunal went on to reject a claim made by the applicant that he had been forced to go into hiding as a result of the threats that he had received, and, implicitly, also, a rejection of the claim that the threats reflected a serious intent to harm the applicant.

GLEESON CJ:   What was the point of departure between what the magistrate said at the bottom of 31 and the top of 32 and what Justice Marshall said?

MR HORAN:   In essence, the difficulty in the Federal Magistrate’s approach is that when one looks at the middle of application book 31, the concluding sentence of paragraph (31), his Honour has said that:

Whilst the term “threat” may cover any actual (objective) risk, danger, hazard or peril to a person’s life or liberty –

which was the construction advanced on behalf of the Minister –

it clearly cannot exclude the making of oral or written threats against the person.

So his Honour did not in fact choose between the competing constructions but simply said that both were reflected in the provision.

GLEESON CJ:   Will you tell us what is wrong with what the magistrate said at the bottom of 31 and the top of 32?

MR HORAN:   What is wrong with his Honour’s approach was that his construction failed to use as a starting point the meaning of “threat” meaning risk or danger to a person and then to examine whether or not the circumstances, including the receipt of written or oral threats, gave rise to a risk of harm.

GLEESON CJ:   I cannot help feeling that you are attributing to your opponent an argument that your opponent does not make.  I do not think it is being suggested that you characterise something as a threat, for this purpose, simply by looking at what is said.  We all know that a lot of threats are made by impotent people; in fact, sometimes the more impotent people are, the more strident they become in the threats that they make.  But the magistrate says it has to be a threat made – I understand that to mean made in circumstances – where it “could fairly engender in the mind of a reasonable person a reasonable apprehension”, et cetera. 

I do not think anybody is suggesting that you decide whether or not something is a threat simply by looking at what was said.  A man who has been carried away by men in white coats with handcuffs and is screaming out, “I’m going to kill you”, in circumstances where you know he is about to be put in solitary confinement for 20 years, is not making a threat within the context of a definition of “serious harm”.

MR HORAN:   Yes.

HAYNE J:   There are about 90,000 threats made many Saturday afternoons at the MCG too, Mr Horan.

MR HORAN:   Yes, and it is in those circumstances where it is incumbent upon the fact‑finding body to assess whether or not the written or oral threats constitute serious harm within the contemplation of section 91R(2).  In that sense there may be not as great a difference between the approach adopted by the Federal Magistrate and the construction adopted by Justice Marshall but ‑ ‑ ‑

GLEESON CJ:   Just at the moment I am having a little difficulty understanding the difference between the approach adopted by the Federal Magistrate and the approach adopted by the Tribunal member.

MR HORAN:   Yes.  That was going to be my point, that in this case because of the leaping logic that the Federal Magistrate took in which one has a construction of the section and then a simple conclusion that it follows that the Tribunal had addressed the wrong question without any consideration of the process in which the Tribunal engaged in addressing the various matters that his Honour had just noted were relevant fails to apply his construction to assess whether or not the Tribunal was in jurisdictional error.

GLEESON CJ:   I am almost ashamed to have to ask this question.  Is the Minister represented before the Tribunal?

MR HORAN:   No, your Honour.

GLEESON CJ:   So there was nobody before the Tribunal urging upon the Tribunal the construction of the section that you are now urging on us?

MR HORAN:   I think that is right.  It is left to the Tribunal to apply the statute to the circumstances at hand.

GLEESON CJ:   I have to admit that my very quick and superficial reaction is that the construction put on this provision by the Federal Magistrate is better than the construction for which you contend but at the moment ‑ ‑ ‑

MR HORAN:   They are not mutually exclusive in this sense, your Honour, in that it is not put by the Minister that the term “threat” in section 91R(2)(a) excludes written or oral threats.  It is simply put that it is not confined to written or oral threats which may or may not engender a genuine fear of harm, but it encompasses “threat” in a broader sense which is consistent with the use of that term in the Refugees Convention and with the use of that language in similar judgments of this Court such as the judgment in Chan and ‑ ‑ ‑

HAYNE J:   But where do we find the Tribunal – I am not saying the Tribunal does not – but where do I find the Tribunal addressing whether:

the words spoken or written, or the actions taken, could fairly engender in the mind of a reasonable person a reasonable apprehension that his or her life or liberty is genuinely at risk.

Do we find that in the Tribunal?

MR HORAN:   Not in those terms because they are not the terms of the section.

HAYNE J:   I understand that.  You get the conclusion, but do we find in the reasons of the Tribunal any consideration of what I might call the objective assessment of the consequence of the uttering of the words or making of the phone calls?

MR HORAN:   One has to look at the findings that were made in relation to the general situation in Sri Lanka concerning political violence which are made at pages 9 to 10 of the Tribunal’s reasons and then leading into the specific findings in this case which look at the number and nature of the threats and then look at what effect they had on the applicant.  The Tribunal did not accept that the applicant had in fact been driven into hiding in order to avoid serious harm as a result of these threats and found implicitly that nothing came of the threats in a context where, if there had been a serious intent to harm the applicant, it would have been quite easy for the persons making the threats to have done so.

So those two relevant findings, your Honour, are again on application book 12 at line 18 and following.  The Tribunal finds that it is:

not satisfied that the applicant was in hiding as he claimed and that that this was the reason why he managed to avoid more serious harm:  on his own evidence he was visiting his family sometimes and he was spotted by the people driving the van.  Had there been a serious intent to harm him, 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.

There was also findings made about the failure by the applicant to report any of these incidents to the police and although the explanation given was that the applicant did not do so because his father’s life had been threatened,

the Tribunal found that evidence unconvincing.  So that all of these matters were looked at by the Tribunal in making its finding that the conduct in question did not involve serious harm or persecution.  This was done in a context where there was no argument before the Tribunal about the meaning of section 91R(2)(a) and, of course, the language that is used and the tests that are formulated, whether by Federal Magistrate Walters or by Justice Marshall, the Tribunal did not have the benefit of those formulations and simply had to apply the words of the statute. 

Your Honour, where all of this comes to is that on any view the case does not raise a question about the construction of section 91R(2)(a) because even if one accepts the competing construction which was adopted by Federal Magistrate Walters, it is still not clear that the Tribunal failed to apply section ‑ ‑ ‑

GLEESON CJ:   You may be right about that.  You may well be right about that, but the problem is that at the moment Justice Marshall’s decision is authority for the proposition that the Federal Magistrate’s construction of the section is wrong.

MR HORAN:   Yes.  I note also, your Honour, there is another decision of a single judge of the Federal Court, as she then was, Justice Crennan, in VBAS which gives consideration to the issues of construction also and reaches a conclusion which is similar, although perhaps not identical, to the conclusion reached by Justice Marshall.

HAYNE J:   Her Honour referred to the need to maintain certainty in this area of the law.

MR HORAN:   Yes.  So that, in my submission, the construction adopted by Justice Marshall and by Justice Crennan, as she then was, on the Federal Court are correct but that in any event the case is not a suitable vehicle to explore any issues of construction, whether in relation to section 91R(2)(a), in particular, or generally in relation to the operation of section 91R.  If the Court pleases.

GLEESON CJ:   Thank you.  In this matter there will be a grant of special leave to appeal.

We will adjourn for a brief time to reconstitute.

AT 2.55 PM THE MATTER WAS CONCLUDED