VBAO v MIMIA & Anor

[2005] HCATrans 973

[2005] HCATrans 973

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

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 NOVEMBER 2005, AT 2.02 PM

Copyright in the High Court of Australia

VBAO appeared in person.

MR C.J. HORAN:   If the Court pleases, I appear for the first respondent.  (instructed by Clayton Utz)

GUMMOW J:   The Court holds a submitting appearance for the second respondent.  Is there any appearance from the applicant?  There is an interpreter present?  You have to be sworn in, Mr Interpreter.

RANJITH SOYSA, affirmed as interpreter:

GUMMOW J:   Thank you.  Yes, we will hear from you first, Mr Horan, and then we will give the applicant the opportunity to respond to what comes from you.

MR HORAN:   Yes, if the Court pleases.  Your Honours, the respondent submits that the Tribunal properly construed and applied section 91R of the Migration Act.  It accepted that the applicant had received threatening phone calls and letters and examined the nature and surrounding circumstances of those threats and found that in the circumstances the calls and letters did not constitute persecution involving serious harm.

KIRBY J:   This was persecution for the ground of political belief, was it not?

MR HORAN:   Yes.

KIRBY J:   It was related to association with the Sri Lankan Freedom Party ‑ ‑ ‑

MR HORAN:   Yes, which is ‑ ‑ ‑

KIRBY J:   ‑ ‑ ‑ which is the government of Sri Lanka at the moment.  I know they have got an election on at the moment but ‑ ‑ ‑

MR HORAN:   At the time of the ‑ ‑ ‑

GUMMOW J:   It was the United National Party, was it not?

KIRBY J:   Is that Mrs Bandaranaike’s party or the other one?

MR HORAN:   It is her party and she is the President but there are presidential elections as distinct from parliamentary elections.  I cannot assist your Honour on the current composition of the government in Sri Lanka.

KIRBY J:   Anyway, the President was for some time of a different party to the Prime Minister but then that would change and now the former Prime Minister is challenging to get into office as President.

MR HORAN:   Yes.  At the time the applicant left Sri Lanka, my understanding is that the People’s Alliance were in government but that approximately a month after the applicant left there was an election in which there was a change of government.  The issue raised in this case, at first instance and on appeal, related to the construction of section 91R(2)(a) which provides an instance of serious harm for the purposes of the Convention to include “a threat to the person’s life or liberty”.

KIRBY J:   The Federal Magistrate found that there was a failure to comply with the section because the Tribunal should have considered the number of death threats that had been made against the applicant.

MR HORAN:   At first instance the Magistrate construed the section to mean that prima facie a written or oral death threat would be a threat to life or liberty within the meaning of that section and that his Honour concluded that the Tribunal had not properly construed or applied the section in that fashion.

KIRBY J:  

(2)      Without limiting what is serious harm . . . the following are instances of serious harm:

(a)     a threat to the person’s life or liberty –

It seems pretty clear.

MR HORAN:   Yes.  Well, your Honour, the use of the terminology “threat” in that paragraph is not intended to mean that every written or oral threat, in the sense of a declaration of intention to cause harm, must be taken to involve serious harm; rather, a threat to the person’s life or liberty is used to refer to a threat in the general sense of a risk or danger.

KIRBY J:   You want to read into the statute a real or genuine threat to the person’s life or liberty?

MR HORAN:   Not quite, your Honour.

KIRBY J:   You are glossing the statute, are you not?

MR HORAN:   No.  Rather than reading “threat” in the narrow sense to mean a written or oral declaration of intention to harm or cause harm to a person, “threat” is used in a general sense to mean a risk or danger to the person’s life or liberty, and that may be constituted or evidenced by written or oral threats, but they do not necessarily constitute “a threat to the person’s life or liberty” within paragraph (2)(a).  So that in each case it is necessary for the Tribunal not simply to – once the Tribunal accepts that threats were made ‑ ‑ ‑

KIRBY J:   Well, I think it was accepted there were “ten threats to his life, by telephone and letter” on page 30.

MR HORAN:   Yes, your Honour, that is right.  There were three threats in a period leading up to December 2000, January 2001, but the applicant’s evidence was that those threats were not taken seriously.  There was an incident involving an assault which occurred in December 2000 or January 2001 and in the period following the assault, in between January 2001 and the time at which the applicant left Sri Lanka in November 2001, there were 10 threatening phone calls or letters received by the applicant.

KIRBY J:   Well, Justice Marshall seems to have reached a different view to the Magistrate, because on page 45 he says that if you have an inadvertent direction of a threat to a person that was not really meant for them, or if it was a joke or so on, then you do not take it seriously.  But can that really be said to be the case of 10 threats in Sri Lanka, given the circumstances in that country?  Why was it not open to the Magistrate to reach the view that he did?

MR HORAN:   Well, the Magistrate also found that not all death threats would constitute threats for the purposes of paragraph (2)(a).  If your Honour looks at the Magistrate’s judgment at paragraph 31 on application book 31, there is an acceptance of the respondent’s submission that:

not all death threats or threats of imprisonment made against a person will necessarily constitute “serious harm”.  Such threats may (for example) be patently hollow, or they may even have been made in jest.

So that qualification is in many respects consistent with the qualification envisaged by Justice Marshall on appeal.

HAYNE J:   Can I understand whether you say that 91R is looking back or looking forward?

MR HORAN:   Section 91R itself is looking both backward and forward because it is relevant to determining whether there was past persecution but is also relevant ‑ ‑ ‑

HAYNE J:   As a step to determining whether there is a well‑founded fear of persecution in the future.

MR HORAN:   Yes, your Honour.

HAYNE J:   But the critical question is, is it not, in determining whether Australia has protection obligations, whether there is a well‑founded fear of future persecution?

MR HORAN:   Yes.

HAYNE J:   So what is the exercise that 91R is inviting or requiring, more accurately?

MR HORAN:   What 91R does is qualify the concept of persecution for the purposes of the Convention by requiring that for the purposes of applying the Act the persecution must involve serious harm.  Subsection (2) then specifies instances of serious harm, the first of which is “a threat to the person’s life or liberty”, and it envisages that the real chance does not have to be a real chance of death or imprisonment itself but that a threat to a person’s life or liberty can itself constitute persecution.  But if the paragraph is read in the narrow sense of referring to written or oral threats or declarations of intention made against a person, it is an unduly narrow approach to that section because it would exclude occasions where threats to a person’s life or liberty arose without such written or oral declarations of intention being made.

When looked at against the background of both the Convention and the use of the terminology of “threatened” in Articles 31 and 33 and cases such as this Court’s decision in Chan which also referred repeatedly in those judgments to harm or threat of harm as being within the concept of persecution and, in particular, Justice Dawson in that case at pages 399 to 400, after referring to Articles 31 and 33 of the Convention, stated that:

there is general acceptance that a threat to life or freedom for a Convention reason amounts to persecution.

His Honour there was not talking about a written or oral declaration of intention to harm someone; his Honour was referring to a threat in the general sense of a risk or danger.  It has long been accepted under the Convention that the persecution can be established by a threat of harm or a risk of harm and it does not simply require the occasioning of harm itself. 

Section 91R(2)(a) is adopting that approach and incorporating it into what is an attempt to elucidate for the purposes of the application of the Act what the concept of serious harm shall include, but importantly it requires, as his Honour Justice Marshall found, the Tribunal to look at the nature and circumstances of, in this case, the threatening phone calls and letters to determine whether or not they constituted a threat to the applicant’s life or liberty.  So rather than simply assuming that once it is accepted that those threatening phone calls and letters were received by the applicant ‑ ‑ ‑

GUMMOW J:   What were the threats of?  What was being threatened?

MR HORAN:   The threats were that if the applicant did not cease political activity that he would be killed and on one or more occasions there was a reference also to a threat that his father would be killed.  So in that sense they were clearly, in the narrow sense of the word, threats to the applicant’s life and to his father’s life, but the respondent’s submission is that that is not of itself sufficient to bring those facts within section 91R(2)(a) without a further examination of the circumstances in which the threats were made and an evaluation of whether or not they gave rise to a risk to the person’s life or liberty. 

Now, that is what the Tribunal did in this case at application book 12 when examining the background to the threats that were received and then concluding that they did not exhibit:

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. 

Now, some of the reasons for that were tied up with findings that were subsequently made rejecting the applicant’s claim that he was forced to go into hiding in order to avoid serious harm as a result of the threats that had been made.  The Tribunal did not accept or was not satisfied that the applicant had in fact gone into hiding and that that was the reason he had been able to avoid serious harm.  In my submission, implicitly, the Tribunal is examining these threats and finding that they did not result in any serious harm being caused to the applicant and, inferentially, therefore they of themselves did not involve any serious intention to harm the applicant.  In those circumstances, it was open to the Tribunal to find that threats of that nature did not constitute serious harm falling within paragraph (2)(a).

HAYNE J:   Well, if you go to page 13, line 15 in the Tribunal, you have the conclusion, do you not:

I have concluded that the chance of the applicant coming to serious harm upon return –

et cetera.  That is the conclusion reached; is that right?

MR HORAN:   Yes, your Honour.

HAYNE J:   You have that?  Now, is the area for debate whether the Tribunal has directed itself properly about the content of serious harm when it characterises what has happened in the past as not serious harm?

MR HORAN:   Yes, or to put it another way, in order to succeed the applicant really needs to show that it was not open to the Tribunal, having accepted that these threatening phone calls and letters were received, then to find as a matter of fact that they did not constitute serious harm because ‑ ‑ ‑

HAYNE J:   It has revealed application of wrong principle, wrong principle of law.

MR HORAN:   Yes, so that if the construction advanced by the applicant below was that essentially that these threatening phone calls or letters of themselves fell within the words “a threat to the person’s life or liberty” within section 91R(2)(a) and that by not finding that these threats involved serious harm there must have been a misconstruction of that section.  Importantly, however, even the Federal Magistrate at first instance did not find that any death threat in any circumstances must necessarily fall within section 91R(2)(a).  So that if there are qualifications which require an examination of the nature and circumstances surrounding the threats then that is precisely what the Tribunal has done and it falls within the province of the Tribunal’s fact‑finding function.

Your Honours, returning to the judgment of the Federal Magistrate, throughout application book 31 to 32, while starting from the proposition that prima facie these threatening phone calls constitute a threat to the person’s life or liberty, there is then a series of qualifications which accept that, at the start of paragraph 33:

the threat . . . must be a real threat to the person’s life or liberty.

Then there is the qualification of requiring that:

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.

Then, even more importantly, his Honour acknowledges that it may be relevant to look at “the degree of actual risk faced by the person” as a result of the threats and that:

The form of the threat and the capacity of the person or persons making the threat to actually carry it out are clearly relevant factors –

Now, all of those things indicate that it is not sufficient simply to accept that a threatening phone call or letter such as was received here is necessarily serious harm within section 91R(2)(a).  It is necessary to go further and to look at the actual circumstances.  So that when his Honour the Federal Magistrate concludes at paragraph 35 that:

It follows from the above that, in my opinion, the RRT failed to properly or fairly address the claims made by the applicant, and failed to properly apply section 91R –

with respect, it does not follow from the above that either of those things occurred, because his Honour himself has acknowledged that it is necessary to look closely at the conduct involved to determine whether or not it involves an actual risk of serious harm eventuating to an applicant.  Now, in the respondent’s submission that involves two points which relevantly, for the purpose of today’s application, would be put against special leave being granted. 

The first is that the construction that was preferred by his Honour Justice Marshall on appeal was clearly correct, and that is that the concept of a threat to the person’s life or liberty within subsection (2)(a) means a risk or danger and not a threat in the narrow sense of a threatening phone call or letter, so that these calls and letters do not necessarily constitute serious harm.  I would simply note that that construction was also reached by her Honour Justice Crennan sitting as a judge of the Federal Court on appeal from a Federal Magistrate in the case of VBAS v Minister for Immigration & Multicultural & Indigenous Affairs and is supported by a range of contextual elements and principles of statutory construction.

The second point is that even if one accepts that the Federal Magistrate correctly construed section 91R, it does not follow that the Tribunal erred in applying that paragraph, in that it did look at factors such as the form of the threat and the capacity of the person or persons making the threat to carry it out and whether or not the threats were real threats and concluded that the threats did not involve serious harm.  In the respondent’s

submission that finding was open to the Tribunal, so that in this application the choice between the two constructions that were agitated below as to the meaning of section 91R(2)(a) does not arise on the facts of the present application.  If the Court pleases.

GUMMOW J:   Yes.  Thank you, Mr Horan.  Well, Mr Translator, will you ask the applicant whether he wants to add orally now anything further to what is in writing and anything further in response to what has just been said by Mr Horan.

VBAO (through interpreter):   I am not in a position to submit any information with regard to legal matters but I am requesting you to consider giving me time to get the assistance of a lawyer.  As I did not have any rights to work in Australia for four years, I did not have any money to obtain the services of a lawyer.  Therefore, I am requesting your Honours to consider my request to give me some time.  I tried my level best to get assistance from the Legal Aid and also the Refugee Council but I could not get any help from them.

GUMMOW J:   Thank you.  Mr Horan, you have heard what has been said on the other side.  Do you have any response to that?  There does seem to be a point.  It may be a good point or a bad point, but there does seem to be point.

MR HORAN:   Yes.  The applicant did have legal assistance in the courts below and ‑ ‑ ‑

GUMMOW J:   To come to the point, what we at the moment have in mind is sending the transcript of today’s proceedings to the Victorian Bar for action by them and standing the matter over until counsel has been provided on a pro bono basis.  Do you dissent from that course?

MR HORAN:   No, your Honour.

GUMMOW J:   Very well.  Of course it is being stood over until the next available special leave day in Melbourne.  It may not involve a Bench constituted in the same fashion as this.

MR HORAN:   Yes, if the Court pleases.

GUMMOW J:   Very well.  Mr Translator, please explain to the applicant that we are referring the transcript of the proceedings today to the Victorian Bar Association with an indication the Court would be assisted by the provision of pro bono counsel by the Victorian Bar.  It is very important if pro bono counsel is provided by the Bar that the applicant co‑operate fully and give all assistance he can.

We will stand the matter over to be restored to the first available list in Melbourne after the provision of counsel as indicated.  Costs of today will be costs of the leave application in due course.

AT 2.29 PM THE MATTER WAS ADJOURNED