Applicant S v MIMA [2003] HCATrans 265 (8 August 2003)

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Applicant S v MIMA [2003] HCATrans 265 (8 August 2003)

Last Updated: 18 August 2003

[2003] HCATrans 265

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P88 of 2002

B e t w e e n -

APPLICANT S

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 AUGUST 2003, AT 9.58 AM

Copyright in the High Court of Australia

MR M.D. HOWARD: May it please the Court, I appear for the applicant. (instructed by Minter Ellison)

MR P.R. MACLIVER: May it please the Court, I appear for the respondent. (instructed the Australian Government Solicitor)

GUMMOW J: Yes, Mr Howard.

MR HOWARD: Your Honours, there are two issues in this case. The first is a question of whether there was evidence before the Tribunal that Afghani society perceived or recognised a particular social group that the applicant may have fallen within.

KIRBY J: But do you have to have recognition by the society in question? It is a question of whether the court looking at the matter perceives that such a group existed, is it not? It is not a club. We are not talking about a club with a sign on the door somewhere. It is a construct.

MR HOWARD: We would agree with that and the error that we say is - - -

GUMMOW J: This is paragraph 28 of your written submissions, is it not, on page 97?

MR HOWARD: Yes, it is, your Honour.

KIRBY J: You have read Dranichnikov, have you not, which says how important it is to get right the definition of the social group because everything follows from that.

MR HOWARD: Yes, your Honour. What is also significant about the Dranichnikov decision for this application is that the evidence in Dranichnikov, as far as appears from the Court’s reasons, came from Mr Dranichnikov and his wife whom the Tribunal found to be credible. The same occurred in this case where the Tribunal found the applicant, on what is relevant to the proceedings this morning, to be credible. There was country information as well which supported the proposition that not only were the Taliban targeting able-bodied young men but that there had been thousands of such men fleeing the principal cities and fleeing Afghanistan.

So that even if there was a requirement, which we say as a matter of law there was not, that there be evidence of the society perception, it was present in this case. But to pick up the point that your Honour Justice Kirby made, our submission is that, although it may be relevant and it may be an indicator of there being a particular social group, it is not determinative of there being evidence from that particular society.

GUMMOW J: Now, the other side of the argument is put at page 102, is it not, by counsel for the Minister at paragraph 3?

MR HOWARD: Yes, your Honour. We say two things about that. Firstly, we say that that ignores the evidence that was before the Tribunal which was found by the Tribunal, but more importantly perhaps for the application this morning is that it proceeds on a wrong legal basis.

GUMMOW J: Yes. You may be right about that and that may be the special leave point but there may be some support for your opponent’s view of matters in Justice McHugh in Applicant A 190 CLR 225 at 265, lines 9 to 12.

MR HOWARD: Your Honour, with respect, if one reads those observations at page 265 in light of the observations at page 264 in about the middle of the page - - -

GUMMOW J: But do you see at 265:

are perceived . . . in the society –

Do you see that?

MR HOWARD: Yes, I do, your Honour.

GUMMOW J: Yes, and you say you read that with 264?

MR HOWARD: Yes, your Honour, because his Honour Justice McHugh in that case says that while – the view of the majority, of course, was that while persecution cannot define the social group, persecution may in fact identify the group. His Honour then says in the last full paragraph:

The fact that the actions of the persecutors can serve to identify or even create “a particular social group” emphasises the point that the existence of such a group depends in most, perhaps all cases, on external perceptions of the group.

Now, what the Full Court in this case and the Full Court in Zamora, which my learned friend refers to, have done - - -

GUMMOW J: Can you take us to the particular passage in the Full Court which you say exemplifies error?

MR HOWARD: Your Honour, if one goes in the appeal book to the judgment of her Honour Justice Stone - - -

GUMMOW J: Yes, that starts at 82.

MR HOWARD: Yes, at page 85 of the application book at the top of the page her Honour says:

Additional evidence to support a claim that they are perceived as such by their society is necessary.

Then we say there is an incomplete recitation of the facts before the Tribunal but at the foot of page 85 at about line 115 her Honour says:

I can find no trace of any evidence before the Tribunal that would support a claim that Afghan society perceived young able-bodied men as comprising a separate group –

His Honour Justice Whitlam concurred in those reasons and they constituted the majority.

GUMMOW J: Assuming you are right about that, your draft notice of appeal does not really flag it very well, does it? I assume you may not have drawn it.

MR HOWARD: Unfortunately, your Honour, I did draw it. The difficulty is this, that - - -

KIRBY J: Throw yourself on the mercy of the Court.

GUMMOW J: All I am saying to you is that if you succeed in persuading us to grant you leave, you will have to massage your draft notice of appeal.

MR HOWARD: I would be hopeful of getting somebody to do that and appear before your Honours to present it more eloquently.

GUMMOW J: I do not know about that.

MR HOWARD: The proposition is this, that the decision of the majority was wrong in the sense, in our submission, because of the errors of fact but there is also this question of - - -

GUMMOW J: I think, Mr Howard, that you have persuaded us to the extent that we should indicate we would be assisted by hearing from Mr Macliver.

MR HOWARD: May it please the Court.

MR MACLIVER: Yes, thank you, your Honours. The respondent submits that there is no error made by their Honours Justices Stone and Whitlam in concluding as they did that there was no evidence or material before the Tribunal which would support a claim that Afghan society perceived able-bodied young men as a particular group.

GUMMOW J: What I think I would like you to focus on at the moment though is those two passages in Justice Stone’s reasons at page 85 to which Mr Howard took us at the top and the bottom. Do you say they are accurate in legal formulation?

MR MACLIVER: Yes, your Honour, we do and we say that - - -

GUMMOW J: Your opponent denies that and the question then is: is there a question of law?

MR MACLIVER: Your Honour, if one goes to the decision of Applicant A which your Honours have already canvassed with my learned friend, we would rely on passages in the judgments of their Honours Justices Dawson and McHugh. Firstly, his Honour Justice Dawson at 241 at about point 4 on the page after reference (57) said this:

The adjoining of “social” to “group”, suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large. The word “particular” - - -

KIRBY J: That sounds awfully like the theory that it is a club, whereas the people in it may, for their own safety, not have much contact with each other, such as people of a particular religion in former communist countries or people who are homosexual in some countries with extreme religious viewpoints. They may be wise not to, as it were, get together as a group in that sense but they may still be a cognisable social group.

MR MACLIVER: Yes, we do not disagree with your Honour that in those circumstances such a group may nevertheless still be a cognisable social group, but it has to be a social group cognisable or perceived by or within the society in which the issue arises.

KIRBY J: I think the real key to it is that it has to be a group that is liable to persecution and, therefore, it cannot be an unknown group in the sense that the society does not care, does not pay any attention, does not know, because the whole point is that it has to be a group that has the real chance of suffering persecution, or the individual must be a member of that group. So it is the persecution which gives the key to the social recognition of the group. Is that correct or not?

MR MACLIVER: That may be the case, your Honour, and of course Justice McHugh in Applicant A at page 264 postulated a group of left-handed men who may not be a particular social group – this is about point 5 of that page – but he goes on to say:

But, if they were persecuted because they were left-handed, they would no doubt quickly become recognisable in their society as a particular social group. Their persecution for being left-handed would create a public perception that they were a particular social group.

KIRBY J: That seems to bear out what I was saying. It is natural that you would want to go into what the Court has said about these matters, but just looking at it as a question of principle, just look at - after all, the Refugee Convention is imported into the Act and, therefore, we are applying the words of the Convention, not the words of judges. What is the correct way to approach the social group in that context, in your submission?

MR MACLIVER: Your Honour, in our submission, the correct way to approach it is on a two-pronged basis. Yes, there has to be evidence of persecution. If that cannot be established, then we get no further, but it has to be capable of being established on the material before the decision-maker or the Tribunal that there does exist a particular social group perceived as such - - -

KIRBY J: Independently of the acts of persecution, but I think the position of the Court’s jurisprudence now is that though the group must pre-exist the persecution, the persecution can reinforce the solidarity and identity of the group. Is that not correct?

MR MACLIVER: That is undoubtedly correct and would clearly follow from what his Honour Justice McHugh said in the passage which I have just cited to your Honours, but if I could perhaps reinforce what his Honour said by referring to another passage by his Honour at page 266 in Applicant A and this is the passage at about point 7 where his Honour, after this discussion about “particular social group”, concluded:

It follows that, once a reasonably large group of individuals is perceived in a society as linked or unified by some common characteristic, attribute, activity, belief, interest or goal which itself does not constitute persecution and which is known in but not shared by the society as a whole, there is no textual, historical or policy reason for denying these individuals the right to be classified as “a particular social group” for Convention purposes.

So, again, his Honour emphasises that it must be a group perceived in the society which the matter is concerned with as having some characteristic or attribute which links them together such that they are recognised in that society as a particular social group.

GUMMOW J: Now, your opponent refers to Khawar as well, and I think what comes out of it all, Mr Macliver, at the level of special leave is there does seem to be some uncertainty as to what in truth is the position on the authorities in this Court on this point. If that is so, we should clear it up one way or the other. You may ultimately be right.

MR MACLIVER: Yes. Well, your Honours, in relation to Khawar let me just say this. That of course was a case where the Tribunal had, as your Honours found, made an error in relation to whether there could be in that case persecution for a Convention reason by membership of a particular social group, because the Tribunal in that case ignored the failure of the State authorities, the police, to protect Mrs Khawar and women in her situation from domestic violence.

GUMMOW J: You see, one of the problems is that in some countries and under some regimes they take the view that these groups do not exist. I can remember being in the Soviet Union 30 years ago and the official line was that there were no Protestants in the Soviet Union. If any put their head up they were just treated under the ordinary criminal law. But there undoubtedly were such people. If we had been debating the question we are debating now against that background, you would say there was this social group.

MR MACLIVER: Yes.

GUMMOW J: The regime’s view was that these social imperfections, as they would see it, did not exist because communism would be the complete success.

MR MACLIVER: Yes.

GUMMOW J: We now know it - - -

MR MACLIVER: There was no opposition.

GUMMOW J: Yes.

MR MACLIVER: I appreciate what your Honour is saying but, to go back to Khawar, the difference between Khawar and the present case is that your Honours in Khawar concluded, no doubt correctly, that there was material before the Tribunal member in that case from which it was open to conclude that there was a particular social group. Your Honours may recall that the Tribunal was aware of the claim based on membership of a particular social group but because of its view of failure of State protection as not giving rise to persecution, it did not proceed to in fact determine whether or not Mrs Khawar was a member of a particular social group.

But your Honours were of the view that there was material before the Tribunal in that case from which it was open to conclude that there was a particular social group, and I refer to the judgment of his Honour Chief Justice Gleeson at paragraph [32] in Khawar where his Honour stated:

In my view, it would be open to the tribunal, on the material before it, to conclude that women in Pakistan are a particular social group.

In the joint judgment of your Honour Justice Gummow and Justice McHugh at paragraph [81] at the bottom of page 680 in the ALJR, your Honour stated:

open to the tribunal on the material before it to determine that there was a social group in Pakistan - - -

KIRBY J: The applicant cites that paragraph as indicating an acceptance of what he calls an objective test, that is to say was there in truth a social group as distinct from did society recognise it, because part of the problem of persecution may be that society does not want to acknowledge the presence of some social groups, as Justice Gummow has pointed out.

MR MACLIVER: Yes. In my submission, what your Honour said there about there being material from which it was open to the Tribunal in that case to conclude that there might exist a particular social group to which Mrs Khawar belonged does not detract from the requirements which we say emerges from Applicant A that a particular social group is one that exists then obviously and must be recognised or perceived in that society to be a particular social group.

KIRBY J: You are making this more and more interesting because of the fact that - it does seem to me that there are arguments for it being recognised because, unless it is recognised, you may not have the persecution element. In other words, if you just ignore it and say it does not exist, then how can there be a risk of persecution if you go back? Yet, on the other hand, one can see an argument that it does not have to depend on the level of recognition because some societies deny the existence of a particular social group simply because of their theory of their own society.

MR MACLIVER: Yes.

KIRBY J: So it is quite an interesting question, is it not? Do you not think it is interesting?

MR MACLIVER: It is certainly an interesting question, your Honour.

GUMMOW J: You have to say it is a closed question, you have to say it is closed, and that is what my problem is.

MR MACLIVER: It is closed in this respect, your Honour, that there has now been three decisions of the Full Court of the Federal Court; Zamora, Applicant Z and the decision below, and all three of those decisions came to the conclusion that a claim based upon membership of a particular social group was that there exist within that society a group having some recognised attributes perceived or cognisable in that society to be of a particular social group.

KIRBY J: In fairness, they pick up what Justice McHugh said in Applicant A and that has been a very influential judgment because it has been referred to in the House of Lords and elsewhere, so you have that running for you, but as against that - - -

MR MACLIVER: Her Honour Justice Stone in her reasons for judgment referred to your Honour’s decision in Khawar and concluded, based upon the passages to which I have taken your Honours, that nothing that was said in Khawar detracts from that requirement. Although his Honour Justice North, I think, was in dissent, that was on a basis of his reading the material. But he also referred to the requirement that the social group claimed be one which is recognised or perceived in that society and that there must be material giving rise to a question. This was a matter very unlike Khawar because - - -

GUMMOW J: Just a minute; it is a good idea to listen. What do we mean by “society” in this setting? I mean, to take the example I gave you, Russian society might have been one thing, the communist regime might have been another. Were the two coextensive in a totalitarian regime, of which there are a great number? Are the mores of the totalitarian regime determinative of what the society views as to certain things?

KIRBY J: Many of them would like to think so.

GUMMOW J: These are the things that underlie this debate. They are fairly profound questions for the operation of the Convention.

MR MACLIVER: I certainly agree with your Honour that what is perceived by the society of a particular country is not to be determined by what the government or the ruling regime considers.

GUMMOW J: Lady Thatcher said there was no such thing as society, do not forget.

MR MACLIVER: Your Honours, perhaps the final point I should make is that we would submit in any event that this is not a particularly suitable vehicle, even if your Honours are otherwise minded to grant special leave. The claim in this case of course, as your Honours are aware, is based upon membership of a particular social group resulting from the Taliban’s practice of recruiting on an ad hoc basis able-bodied young men when necessary for fighting in the civil war in that country. The Taliban regime of course has since disappeared.

GUMMOW J: That may be a debatable question.

KIRBY J: I hope you are not giving us fresh evidence.

MR MACLIVER: No, your Honour.

GUMMOW J: Is there anything else, Mr Macliver?

MR MACLIVER: No, I think I have made all the points that I can usefully make to your Honours.

GUMMOW J: Thank you, Mr Macliver. There will be a grant of leave in this matter, but, Mr Howard, some revision will be necessary to the draft notice of appeal, as we have indicated to you.

MR HOWARD: Yes, I understand that, your Honour.

GUMMOW J: Can this be done in half a day?

MR HOWARD: With the benefit of written submissions, yes, I think it could be.

GUMMOW J: Maybe a little more, yes. Very well, so there will be a grant of leave in this matter and it will be in the list for Perth for October.

MR HOWARD: May it please the Court.

KIRBY J: Obviously, it will be necessary to have a look at what the textbooks and what courts in other jurisdictions have done because we all try to keep up with each other in the way in which this Convention is being interpreted and applied.

MR HOWARD: Yes, I understand that, thank you, your Honour.

GUMMOW J: We note the identity of your instructing solicitors and they have some work to do, I think, to follow up what Justice Kirby has just said to you.

MR HOWARD: Yes, may it please the Court.

GUMMOW J: Thank you.

AT 10.24 AM THE MATTER WAS CONCULDED