Applicant P32/2002 v MIMA P32/2002 [2002] HCATrans 517 (24 October 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P32 of 2002

B e t w e e n -

APPLICANT P32/2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 2002, AT 12.43 PM

Copyright in the High Court of Australia

MR R.K. O'CONNOR, QC: Your Honours, I appear for the applicant. (instructed by the applicant)

MR M.T. RITTER: If it please the Court, I appear for the respondent. (instructed by the Australian Government Solicitor)

GLEESON CJ: Mr O'Connor, I am afraid I am going to have to ask you to do the same thing again. We just need to look at these papers. Yes, Mr O'Connor.

MR O'CONNOR: May it please the Court. This case is quite different from the general run of refugee application cases. The application concerns a national of Iran who is being discriminated against in Iran because of his race. Three generations ago his father's family came to Iran from Algeria and the applicant is black which has led to the discrimination against him. He is a former national wrestling champion in Iran.

GLEESON CJ: Your client won at first instance - won in the Federal Court - - -

MR O'CONNOR: I was about to say the difference here is that he lost at the RRT but was successful before Justice Hely at first instance in the Federal Court, however - - -

GLEESON CJ: He was represented by Mr Heenan before Justice Hely.

MR O'CONNOR: Yes.

GLEESON CJ: Was he represented in the Full Court?

MR O'CONNOR: Yes, by Mr Heenan again.

GLEESON CJ: Right, thank you.

MR O'CONNOR: Who, as you may well know, is now on the Bench of the Supreme Court. In this application we submit that the decision and reasoning of Justice Hely was correct. The basis of Justice Hely's decision was as follows. He said that the RRT in considering whether the discrimination was persecution applied too high a test. The RRT had found that the discrimination was "low level" and of "minimal impact". Justice Hely considered that this was equivalent to saying that the discrimination should have been able to be tolerated. The question whether the discrimination should be able to be tolerated was one part of a four-part test or guidelines suggested by Justice McHugh in Ibrahim's Case.

However, the Full Court of the Federal Court in Gersten v The Minister said that the test was whether the discrimination was "trivial or insignificant", the Full Court saying that this test was derived from the dicta of Chief Justice Mason in Chan's Case and they said that in paragraph 48 in the Gersten decision. The RRT had not applied this test. Justice Hely saw a difference between "able to be tolerated" and "trivial or insignificant".

GLEESON CJ: Where do we find in the reasons of the Full Court the point of departure from Justice Hely?

MR O'CONNOR: With great respect, it is not a reasons for judgment which is easy to understand. In my respectful submission, they do not directly address the point made by Justice Hely. They emphasised what they saw as a difference between "persecution" and "harm" being an action word or a verb and a noun and an effect. Certain actions which are persecuting actions cause persecution or certain harming actions, if you do harm to someone or if you harm someone, that causes them harm. They seemed to focus on what I see as a semantic argument between words.

GLEESON CJ: As I understand it, the facts have been accepted all through, so your client's account of what happened to him in Iran is accepted. Could you just summarise the way in which he says he was treated that amounts to persecution.

MR O'CONNOR: Yes, he says that he has had a lifetime of persecution because of his race.

GLEESON CJ: I understand that it is his colour that is the problem, but what has happened - - -

MR O'CONNOR: Yes, he is black because he is of Algerian descent. He did mention two particular incidents which the RRT focused upon. He was on a bus; he was the only black person on it; some security police came; there were 40-odd people on the bus; only the applicant was taken off and he was made to strip and humiliated in front of the other passengers of the bus. That is one instance. Another instance, he and some other black people were playing at a sports centre and the security police came in and said that a time and place should be made for prayer and he made the comment, "This is a play place, not a mosque", and they took offence at that and they beat him up.

Now, they are only two instances of all the things that have happened and I have listed all the things which have happened in my Appendix A to my outline of argument. Now, there are 21 matters mentioned or accepted by the RRT in its reasons for decision but they described those two matters as having just of minimal impact, even though - I should have mentioned this - in one case when he was beaten, he lost his hearing. I hope I have not confused that with another one of these cases I am dealing with but, sorry - his sense of smell, I am told by my learned friend, he lost his sense of smell.

GLEESON CJ: He has had, from some points of view, a fairly successful life, has he not?

MR O'CONNOR: He did make it with difficulty to the national championships in Iran in the wrestling, but that was only because he was so good and, the way the story is told, he had difficulty getting there. He says in his evidence whenever there was an opportunity for him but there was someone who was white at the same time, the white person always got the opportunity for him and he has not competed outside Iran and he believes that that should have been able to happen. He has had a limited degree of success but it has been restricted in those ways.

The point here is that the RRT said that these matters were of "low impact" and effectively said should have been able to be tolerated. Now, that was a test from Justice McHugh in Ibrahim. However, in Gersten and in the Full Court in this present case, the Full Court of the Federal Court has said that the test - whether the discrimination exceeds "trivial or insignificant" is the appropriate test. Now, they have said that that comes from Chief Justice Mason in Chan, but that is not what he said. Firstly, if I could say what the Full Court in Gersten said. They said:

In our view the Tribunal did no more than reiterate, as Mason CJ had in Chan, the proposition that persecution involves harm that is more than trivial or insignificant.

But what Chief Justice Mason actually said was:

the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns.

So they have turned it around in the Federal Court.

GLEESON CJ: But in a way that is favourable to your client, is it not? If they says the test is, "Is it trivial or insignificant?", that is favourable to the applicant.

MR O'CONNOR: It should be but that is not what has been applied here because what was applied here by the RRT is whether it should be able to be tolerated, and that is higher test. It is possible for something to be more than trivial and insignificant but not reach the level of being "should be able to be tolerated". Here we say that the test that should have been applied based on the Federal Court reasoning, the Full Federal Court in Gersten, is whether or not it was more than trivial and insignificant, and it might be just marginally more and, if it is, that is sufficient to make the discrimination persecution.

Now, that is the point here as to the point of special leave, the question of law. We say that this Court needs to say which is the appropriate test, the Justice McHugh test of "should be able to be tolerated" or the Full Court which, by turning around the words of Chief Justice Mason, they say whether or not it exceeds trivial and insignificant. The Full Federal Court has said that twice now. It has also been adopted by Justice Branson in Kanagasakai. She applied the same test as to whether or not the discrimination was more than trivial and insignificant.

HAYNE J: Now, is that a question that would remain alive after the recent amendments?

MR O'CONNOR: I cannot give a definite answer, your Honour, but it seems to me the definition of "persecution" is still the appropriate question and here we have courts and parties trying to work out what does constitute persecution.

GLEESON CJ: I suppose that is a question of construction of the Convention provision?

MR O'CONNOR: It is but I do not think, in my respectful submission - at this stage, as presently advised, I do not think that position has changed.

HAYNE J: I thought the Act did alter the application of the definition of "persecution". I thought that was part of that body of changes that was brought in to move away from the Convention definition.

MR O'CONNOR: I must say, your Honour, I cannot say anything further than I do not know.

GLEESON CJ: I wonder if you could have a look at that over the luncheon adjournment and talk to your opponent about that.

MR O'CONNOR: Yes, okay.

GLEESON CJ: We will adjourn until 2.00 pm.

AT 12.57 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GLEESON CJ: Yes, Mr O'Connor.

MR O'CONNOR: May it please the Court. Your Honours, my learned friend, Mr Ritter, was able to provide me with a copy of the amendments to the legislation and he has 12 or 13 pages which I presume he intends to hand up to you so I will leave him to do that, but there is one page of it I would like to hand up to you which deals directly with the question asked.

GLEESON CJ: Thank you.

MR O'CONNOR: Section 91R now does define "persecution" but the significant fact, in my submission, is that it is virtually the same as Chief Justice Mason said in Chan's Case, if you look at (1)(b):

the persecution involves serious harm to the person -

and in (b), (c) and (d) in subsection (2):

(b) significant physical harassment of the person;

(c) significant physical ill-treatment of the person;

(d) significant economic hardship that threatens the person's capacity to subsist -

So even though persecution is now defined, as I say, it is virtually the same as said by Chief Justice Mason and that did not stop the Full Court of the Federal Court in Gersten and in this case at the Full Court stage of turning the wording around so that instead of "serious harm", they said it could not be trivial and instead of saying it had to be significant, they said it could not be insignificant. So I think the submission I make that there needs to be clarification from the Court on the test to be applied still is applicable. That is the main point of our submissions, the primary reason why we say there should be grant of special leave to appeal, the gravity of the discrimination before it amounts to persecution.

Very shortly, there is another ground that there were 21 items mentioned in the reasons for decision which gave an indication of the extent of the discrimination based on this applicant being black. Most of them were ignored when the Tribunal came to make its final finding. If regard had been had to what it had already found, our submission is that it could not have made that ultimate submission. Those 21 instances are set out in Appendix A.

In Appendix B I have 17 quotes from the cases and the authorities, Hathaway being one of them, being a book. What has happened here seems directly to fall within those dicta as to what does constitute persecution, but they have been essentially ignored when the RRT made its finding. They are our submissions, your Honours.

GLEESON CJ: The applicant claimed to have a well-founded fear of persecution based on the past treatment he had received which he said amounted to persecution in Iran because, being of Algerian descent, he is black. The Refugee Review Tribunal accepted the applicant's evidence as to the nature and extent of the discrimination he suffered but said it was not serious enough to be classified as persecution.

Justice Hely allowed an application for judicial review of the Tribunal's decision, being of the view that the Tribunal had erred in law by applying too strict a test for what amounts to persecution. The Full Court of the Federal Court allowed an appeal from the decision of Justice Hely essentially on the ground that there was no error of law in the reasoning of the Tribunal and that expressions in the reasons of the Tribunal that were subject to criticism by Justice Hely were nothing more than attempts on the part of the Tribunal to explain a factual finding in relation to the seriousness of the discrimination of which the applicant was complaining and which he said he feared in the future.

There are insufficient prospects of success of an appeal to warrant the grant of special leave to appeal from the decision of the Full Court of the Federal Court and the application is dismissed with costs.

AT 2.09 PM THE MATTER WAS CONCLUDED