VFAY v MIMIA

[2004] HCATrans 213

[2004] HCATrans 213

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M258 of 2003

B e t w e e n -

VFAY

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 JUNE 2004, AT 2.01 PM

Copyright in the High Court of Australia

MS D.S. MORTIMER, SC:   If the Court pleases, I appear with my learned friend, MS N.P. KARAPANAGIOTIDIS, for the applicant.  (instructed by Lander & Rogers)

MR P.J. HANKS, QC:   Your Honours, I appear for the respondent.  (instructed by Blake Dawson Waldron)

HAYNE J:   Yes, Ms Mortimer.

MS MORTIMER:    If the Court pleases.  Your Honours, we characterise the issue of general principle in this case as the proper approach the Tribunal should take to ascertaining whether the harm that an applicant fears is for reasons of the applicant’s membership of a social group.  In other words, the question that we say this decision poses is, what does the assessment of the nexus between apprehended persecution and a Convention ground require when one is dealing with a social group?  Our argument, both to this Court and below, was that if the decision‑maker finds as a fact, as the Tribunal did in this case, that a characteristic which brings the person within the posited social group is the reason that the person may face harm, then it follows, we say, that the fear of harm is for reasons of the membership of that group.

Now, the Full Court relied on what it took from this Court’s decision in Haji Ibrahim to find, contrary to our submission, that it was correct for the RRT to draw a distinction between an increased risk or likelihood of harm as a consequence of civil unrest and the likelihood of harm being because of membership of the social group.  The respondent adopts that argument but goes further in her submissions to submit that even where a Convention reason might increase the risk of harm, the nexus is not necessarily made out.  Our submission is that that approach both misunderstands what this Court has found in Haji Ibrahim but, more importantly, puts the threshold too high in terms of determining what is required by those words “for reasons of” in the Convention definition.

I want to take a moment to say something about the Tribunal’s fact finding in this case, and one of the respondent’s arguments against the grant of special leave, which is that this case is not a suitable vehicle.  Our submission, if the Court pleases, is that this case is a good vehicle to determine the issue about nexus, because firstly, there are no credibility issues at stake in the Tribunal.  The Tribunal accepted the applicant’s account completely, accepted his age and accepted his status as a separated child.

The Tribunal made findings that the applicant was faced with a real risk of harm.  It identified that harm loosely, but it identified it, in our submission, with sufficient particularity to be able to say that the harm was serious enough to constitute persecution.  It used words such as that it was satisfied the applicant would face “danger”, that the applicant was “vulnerable” to the insecurity and resultant fighting that was likely to be present in Afghanistan, and that the applicant might be “a victim of opportunistic criminal acts”.  Now, in our submission ‑ ‑ ‑

HAYNE J:   Does the point come to that as an unaccompanied child, life in Afghanistan will be hazardous?  Is it more than that?

MS MORTIMER:   Your Honour, in our submission, yes, that was the characterisation that the Full Court put on the Tribunal’s decision.

HAYNE J:   What is more that is missing from that characterisation in some form?

MS MORTIMER:   Because what the Tribunal did was to identify the reason for the applicant’s vulnerability, and identified it as his youth and the fact that he was a separated child or an unaccompanied minor.  They are interchangeable.  Now, those are the characteristics that unite the social group that was put to the Tribunal, and if that is right, then to find, in our submission, firstly ‑ ‑ ‑

HAYNE J:   What is the persecution?  You have an unaccompanied child.  Step one is, you say, unaccompanied children are the relevant social group.  Is that right?

MS MORTIMER:   Separated children was one put, unaccompanied Hazara minors was the other.  So the ethnicity was incorporated into one.

HAYNE J:   And what is then said to be the relevant persecution?

MS MORTIMER:   Physical harm.  That is the way it was put in the applicant’s claim, that he feared physical harm.  The Tribunal, in our submission, accepted that, albeit that it used what I have described as loose language.  In part, that is because it accepted the country information put before it, but this is not a case where there was any dispute about the physical dangers that faced people in Afghanistan.  This was a case that was about why the applicant might face those physical dangers.

Now, if the Tribunal had simply found, in our submission, that there was generalised insecurity and the country was lawless, and that the applicant would be affected by this as much as anybody else, then there would be no error.  That is a consequence of having to return to a place like that, but there would then be no nexus.

HAYNE J:   Where the lawlessness, almost by definition, is felt worst by those who are most vulnerable.  Lawlessness fastens upon the easy prey. 

MS MORTIMER:    Your Honour, that, in our submission, comes close to the very core question, and that is how his Honour Chief Justice Gleeson put the matter in Haji Ibrahim.  His Honour made the observation that: 

Persecution and disorder are not mutually exclusive.  The existence of disorder may provide the occasion of, and perhaps the opportunity for, persecution –

but for the decision‑maker in these kinds of situations, the question is for the individual.  Why is that person likely to face harm?  What is going to motivate those whom I have identified as the inflictors of harm?  And here, for example, there was evidence about ethnic militias and about fighting in many areas.  There was also evidence about commissions of crime.  Each and every piece of conduct like that is capable of constituting persecution. 

The question is, why is it being inflicted?  What is motivating the persecutor to choose that person?  Is it indiscriminate, is it random or is there is something actuating the choice of victim?  If what actuates the choice of the victim is a Convention ground, then the nexus is made out.  Here, in our submission, the Tribunal would have not fallen into error had it stopped at a finding that the applicant was no more likely than anybody else to fall victim to lawlessness or militia attacks or whatever in Afghanistan, but the Tribunal did not stop there.  The Tribunal accepted that the applicant was particularly vulnerable to harm, and it found that the reason for that vulnerability was his youth and was the fact that he was unaccompanied and separated. 

Now, those two attributes are what bring him into the posited social group.  In our submission, where the error lies is that to then go on and say, “Well, the nexus is not made out”, simply misunderstands what is required by those words “for reasons of”. 

HAYNE J:   Let it be assumed that an applicant, not this applicant, was vulnerable on account of some physical disability – evident physical difficulty.  That person may, on the material that the Tribunal had before it, be as open to attack, may they not, as the child?  What marks them both out is being the easy prey. 

MS MORTIMER:   Your Honour, if the person in your Honour’s example is, by reason of those characteristics, able to be or is said to form part of a social group, then if it is those characteristics that motivate the infliction of harm, the nexus is made out.  That is our submission.  If one takes one of the other ‑ ‑ ‑

HAYNE J:   But where it leads to – and this is the point, I think, that I need you to address – it may lead to the view that the relevant group under consideration – let us leave aside social group or not, within the Convention – are those who are easy targets in a lawless society, and where is that leading us ‑ ‑ ‑

MS MORTIMER:   Your Honour, where it leads to is this, describing someone as an easy target involves the assumption that that is why they are being selected, because they are an easy target.  Now, if what makes them an easy target is also what makes them a member of a social group, the nexus is made out, in our submission.  So it is no different to asking – take Afghanistan and take the situation of Hazara people, contrary to the findings of the Tribunal, but perhaps under the Taliban.  If a person was selected for mistreatment because he was an Hazara, and that was the finding the Tribunal made, the nexus is obvious.  The nexus is established.  Now, here ‑ ‑ ‑

HAYNE J:   It would not be beyond the realms of possibility, for example, that the unaccompanied woman in Afghanistan would likewise be open to attack or at risk of attack, I suspect.  Is that so?

MS MORTIMER:    That is so, your Honour, and if unaccompanied women are capable in the circumstances in a particular country of being characterised as a social group, then the only question is what is motivating the person who may attack them.  If it is one or both of those characteristics, then the nexus is made out.  That, we say, is what the Tribunal did not understand here, where it took its findings about this applicant’s heightened risk of exposure to harm because of his age and because of his status of separated child and yet said, “I do not find a nexus”. 

That, in our submission, demonstrates that the Tribunal did not understand that what it was required to look for was what may motivate a person to choose to inflict harm on a person in the applicant’s situation.  It did not understand that, because if it had understood that it could not, in our submission, make those findings about the increased risk and the vulnerability without being satisfied that the nexus was made out. 

The approach that the Full Court took was to introduce, we say, with respect, again this notion of differential impact in a way that it did not need to consider.  It sought to say that all the Tribunal was finding was that there would be a differential impact on this applicant because of his youth and inexperience.  That does not answer the question, because the question is anterior to that.  The question is, why the differential impact?  What is causing the differential impact?  And the Tribunal did not examine that.  It did not descend past its fact finding of vulnerability into any analysis about

what was the cause of that vulnerability, aside from identifying his youth.  That is the only reason the Tribunal ascribed to the vulnerability.  If that is so, then that, in our submission, makes out the nexus.

Your Honours, it is put against us as a reason for opposing the grant of special leave that the manner of the Tribunal’s decision‑making in this case was hypothetical, that is, it only reached this issue because it had considered and rejected the posited social groups as capable of being social groups as a matter of law.  Now, in our submission, that is not a reason that supports the refusal of special leave, because this aspect that we attack in the Tribunal’s decision‑making was a material aspect of its decision.  In fact, that is why the Minister appealed it to the Full Court.

It was one of the Minister’s grounds of appeal that notwithstanding that there were issues about the Tribunal’s categorisation of social group as a matter of law, those errors, if they be made out, did not matter because the Tribunal had essentially gone on and engaged in a “What if I am wrong” exercise.  That, in our submission, was a real exercise by the Tribunal.  It had considered on an alternative assumption that these posited social groups could exist in law, what the applicant feared and whether those fears were well‑founded, and in those circumstances we say that it ought not to weigh with this Court in considering whether a grant of special leave should be made that the Tribunal engaged in that alternative reasoning.  If the Court pleases, those are our submissions.

HAYNE J:   We need not trouble you, Mr Hanks.

We are of the view that there are insufficient prospects of success to warrant a grant of special leave to appeal.  Special leave is refused.

MR HANKS:   Your Honour, I ask for costs of this application.

HAYNE J:   Yes.  Are you able to resist that, Ms Mortimer?

MS MORTIMER:   The applicant is no longer a minor, your Honour…..Full Court…..

HAYNE J:   Yes, special leave to appeal is refused with costs.

MR HANKS:   If your Honour pleases.

AT 2.19 PM THE MATTER WAS CONCLUDED