SDAQ v MIMIA [2003] HCATrans 525 (12 December 2003)

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SDAQ v MIMIA [2003] HCATrans 525 (12 December 2003)

Last Updated: 22 December 2003

[2003] HCATrans 525

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M207 of 2003

B e t w e e n -

SDAQ

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 2003, AT 11.33 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC: If the Court pleases, I appear with MS D.S. MORTIMER, SC for the applicant. (instructed by Mallesons Stephen Jaques)

MR A.L. CAVANOUGH, QC: If the Court pleases, I appear with my learned friend, MR W.S. MOSLEY, for the respondent. (instructed by Australian Government Solicitor)

GLEESON CJ: Yes, Mr Basten.

MR BASTEN: If the Court pleases. The underlying principle raised by this case is a construction point in relation to Article 1A(2) of the Convention. The relevant part of the article is conveniently set out in the judgment of Justice Hill at page 18 of the application book. It is clear that the fear which an applicant must have is a fear of persecution. That fear must be objectively justified, as indicated by the qualifying adjective “well-founded”, but what the article does not require is that the applicant has correctly identified the true reason for the feared harm. No doubt in some cases, and this may be one, the failure of the applicant to identify the true reason may have evidential consequences.

GLEESON CJ: The decision of the Full Court went off on the point, did it not, that there was not any evidence to support a conclusion that the Iranian authorities would attribute Baha’i sympathies to your client because of his social contacts with that faith?

MR BASTEN: Yes, that is so.

GLEESON CJ: Can you tell us this, Mr Basten. In the judgment of Justice Hill, he attributed to the Tribunal, as I understand him, a finding that there was a risk that the Iranian authorities might do that. Was there any such finding made by the Tribunal?

MR BASTEN: No. Indeed, the point of the appeal and the application for review was that the misapprehension of the Tribunal as to the relevant issue had resulted in it truncating its hearing. Could I take your Honours to page 25 at paragraph 24, middle of the page in Justice Hill’s judgment. He is dealing with an argument that the Baha’i association point had not been dealt with by the Tribunal. He says at paragraph 24 there were two points raised by the Minister in response:

First, it was submitted, the applicant had never indicated that he had a subjective fear of persecution for a Convention reason based upon imputed religious beliefs . . . Secondly, it was submitted that the country information before the Tribunal did not raise material which would permit the Tribunal to conclude that any subjective fear which the applicant had of this kind was well founded.

At paragraph 25 he deals with the responses of the applicant. Over the page at paragraph 26 he deals with the second matter identified, namely the relevance of the country material. If I may go straight to the middle of that paragraph in a sentence which begins about six lines down from the top - - -

GLEESON CJ: Just before you leave the first sentence of that paragraph, it is conditional.

MR BASTEN: It is.

GLEESON CJ: The conclusion would be available that there was a real chance of persecution:

should the authorities in Iran [impute] to him the Baha’i faith as a result of his association with his girlfriend and other friends.

What information or evidence was there that would entitle a conclusion that that condition might be fulfilled?

MR BASTEN: We say that one gets that simply by finding the rest of the paragraph. He says:

Whether it would so conclude would be a question of fact . . . The country material indicated that men married to Baha’is have difficulties in employment or promotion because of “unsound background” . . . Indeed the Department of Foreign Affairs and Trade considers that all genuine Baha’is have a legitimate case for seeking refugee status –

The sentence I first read in the middle of the paragraph is presumably a finding or material open to permit the finding that husbands or men married to Baha’is are imputed with unsound background, namely the same difficulty which attends their wives.

GLEESON CJ: On page 46 in paragraph 32, Justice Carr makes a proposition about this matter. Do you quarrel with that?

MR BASTEN: Yes, we do, your Honour. He identifies in paragraph 31 the proposition which came from Justice Hill to which your Honour drew my attention and he says:

As I have said, the appellant was well aware that if his Baha’i association was sufficient for the authorities to impute to him the Baha’i faith then he was at risk of persecution. He did not claim to have any such fear of imputation.

So he treats the essential question as one of a subjective belief and as a matter going to the evidential basis, which of course it does, and then he goes on to say that:

the evidence and material before the Tribunal in this matter did not raise a case of possible imputation of religious or political opinion . . . arising out of the appellant’s Baha’i association.

Justice Cooper says something along the same lines. Our point is that neither of their Honours – indeed, no member in the Full Court – reconsidered the underlying country information. Only Justice Hill considered both the material presented by the applicant and the country information and it was his view, expressed in paragraph 26 at page 26, that there was material of the kind to which I had adverted.

We say, with respect, that it is clear when one continues through paragraphs 27 and 28 on that page that he was not trying to derive some distinction as to imputation or otherwise. There is a reason for that, and it is this, I think. The difference, for example, between this case and S395, which the Court determined earlier this week, is that in that case the question of a choice which might be made by a homosexual was a matter very much within the knowledge of the applicant. In this case the distinction is to be drawn between that which is within the knowledge of the applicant about which of course he must give evidence and that which is not a matter which is determined by his knowledge, namely the attitude of the authorities. The attitude of the authorities may depend upon a belief on their part about a person which is well founded or a belief which is not well founded.

HAYNE J: At paragraph 28 on page 26 in the first sentence, Justice Hill deals first with questions of subjective fear, but what is the second limb of that sentence saying? Do I read it as saying that the other material before the Tribunal did not raise this question of imputation?

MR BASTEN: We would not think that he was saying that, your Honour. We would say he is dealing with it on the basis of the first point, namely that absent material of a subjective fear, there is no material which would be sufficient. In other words, he is saying – and we think this flows from the sentence in the middle of the previous paragraph right in the middle of the page:

In the present case that means, in my opinion, that for an applicant to succeed, the applicant must not only satisfy the Tribunal on a review, that there would be imputed to the applicant the religious beliefs of those Baha’is with whom he is friendly, but that he has a subjective fear of persecution on religious grounds –

and so on.

GLEESON CJ: I find it, if I may say so, a lot easier to see how the process of reasoning of Justice Hill raises the question of construction of Article 1A(2) that you want to agitate than I do to see how the process of reasoning of the Full Court raises it. The Full Court seemed to treat it as simply a matter of fact and they regarded your client’s failure to claim that he feared this as indicating that there was no factual basis for imputing to the Iranian authorities an attribution of his girlfriend’s religious faith to him.

MR BASTEN: Yes. Can I deal with that in two stages, your Honour. So far as the majority is concerned in the Full Court, there is a real issue as to whether if there is some material, as Justice Hill, we would say, suggests there is, whether the next question is one for the Court at all. What I was seeking to say at the outset was that it will undoubtedly be an evidential issue to be considered by the Tribunal in circumstances where the person does not raise a claim of a fear on the basis in a particular way.

That is what Justice Carr, we would understand, is saying. If anybody was to know whether he had a real fear on this basis, it was him. With respect, firstly, that is an evidential question and, secondly, it is just not so. The question about whether he knew what the authorities’ attitude was is really an invitation to speculation on his part. What we say in relation to the English authorities is that they have acknowledged that. They have acknowledged that it is for the decision-maker to find the true reason for determination.

Coming back to the first part of the answer, what we say in relation to the approach that Justice Hill takes is that he seems untroubled by the suggestion that there must be material from which an imputation could be drawn because he determines it on the basis of the need for a specific subjective fear. Insofar as that passage in paragraphs 27 and the top of 28 does not address the need for material supporting imputation, we would understand it to be because he has already identified material on which it was open to the Tribunal to find that such imputations might be made, at least in relation to men married to Baha’is and accordingly, one might think, men who have Baha’i friends or girlfriends particularly. So that we do not understand that Justice Hill had any difficulty with the fact that the country information provided a basis for the imputation. He decided it on the question of whether the particular subjective fear was required or not. If that is right, it does, we respectfully say, raise the construction point with which I commenced.

Your Honours, there is a reason of course why that is an understandably correct approach. One only has to look at the second of the cases in our bundle of Sivakumar to note from the headnote at page 27 of the bundle that neither the special adjudicator nor the Immigration Appeal Tribunal nor the primary judge in that case identified the correct reason for the harm which the applicant had suffered. We would say it would be a curious proposition if in that case the applicant was required to identify the harm accurately himself. So that what happened in this case, as we would understand it – and may I go back to the decision of the Tribunal at pages 10 and following – it is clear, and I need not labour the point, from the second half of page 10 to the whole of page 11, the Tribunal states on no less than five occasions that it is satisfied that the applicant does not come within the Convention. The difficulty, as appears from line 10 on page 10, is that the Tribunal has focused purely on the question of whether the applicant had “a genuine commitment to the Baha’i faith” and it concluded that he did not.

The question which then arose was not the genuineness of his belief which may be rejected but whether or not in the circumstances which the Tribunal did not otherwise reject, namely the association, it might be the case that the Iranian authorities would impute to him a belief which he did not have.

GLEESON CJ: What happened to his girlfriend when he came to Australia?

MR BASTEN: I do not think it is revealed in the material, your Honour. She did not come with him as far as I know.

GLEESON CJ: So he was out here before the Tribunal saying, “I am an adherent to the Baha’i faith”, and the Tribunal said, “You’re just making that up”?

MR BASTEN: In substance they say that he has constructed the story of identification and an intention to convert to support his claim for refugee status, that is so.

GLEESON CJ: And your proposition is the Tribunal should have gone and said, “But, hang on, you have in the past had a Baha’i girlfriend back at home and that might go badly against you if you returned to Iran”?

MR BASTEN: The Tribunal did identify the relevant facts in its decision, namely the matters of association. What it did not consider was whether those matters of association could themselves provide a basis for the Iranian authorities who, it was undeniable, did not approve of Baha’is and particularly not Islamic adherents who convert who were seen as apostates, whether it was possible that that association itself might in appropriate circumstances give rise to a real risk of the imputation to him of similar apostate views.

GLEESON CJ: By the time the Tribunal was looking at it, it seems to have been a past association.

MR BASTEN: With the girlfriend?

GLEESON CJ: Yes.

MR BASTEN: There was no finding of fact made about that specific matter, nor about his association with other people should he be returned.

GLEESON CJ: Because of the way he was putting his case. The way he was putting his case was, “I am an adherent of the Baha’i faith”. Your argument is that, having rejected that and said that was just false, the Tribunal should have gone on to consider a case he was not putting, that is to say, “I once had a Baha’i girlfriend”.

MR BASTEN: Your Honour, the case that he was putting was of a fear of persecution on account of Baha’i belief. It is clear that the Tribunal’s doubts about the construction of his own intention to convert became the central focus of the consideration by the Tribunal. It is not in issue that he raised earlier matters about which the Tribunal either made no findings or which the Tribunal implicitly accepted. Those facts include the facts of association and the fact that he had a Baha’i girlfriend.

With respect, to that extent the case is on all fours with S395. Might I just take your Honours to three passages in the judgment. I can hand up copies because I am afraid we did not have it in your Honours’ bundles. Perhaps I should say this, that as I understand it, the majority judgment accepted that even though a matter had not been put in a particular way by the applicant, it was necessary for it to be considered. At paragraph 39 in the second half of the paragraph in the judgment of Justice McHugh and Justice Kirby about halfway through, their Honours say:

Notwithstanding that it rejected the particular claims of the [applicant], it was entitled to investigate the matter more fully . . . If it is an error of law to reject a Convention claim because the applicant can avoid harm by acting discreetly, the Tribunal not only erred in law but has failed to consider the real question that it had to decide - - -

HAYNE J: What do you say the country information revealed in this case, that those who associate with are liable to persecution or those who in the past have had associations?

MR BASTEN: I am not sure whether that distinction is something I can comment on on the material before the Court. The discussion in Justice Hill’s judgment at paragraph 26 is undoubtedly in the former category, but it would be a matter of fact for the Tribunal, we would say, to determine in such a case as this whether if he returned he would maintain those associations.

GLEESON CJ: That is not quite what Justice Hill has said. He said they are liable to persecution if the authorities believe that they were Baha’is themselves. It is the authorities imputing to him the Baha’i faith because of whatever the association present or past might have been that was the matter that Justice Hill was looking at. He never said, “They’re going to think I’m a Baha’i”.

MR BASTEN: The applicant did not?

GLEESON CJ: No.

MR BASTEN: No, that is so. He did not put it in those terms, but what I was seeking to say was that it may not matter that he did not put it in those terms if there was material – and my point is really that in the middle of paragraph 26 Justice Hill says there is such material that was before the Tribunal which would have allowed that fact to be found by the Tribunal. If that is so, then according to S395, the matter should have been considered by the Tribunal. Might I say the issue arises a fortiori in this case. The question in S395 on which the Court split – and it is clear at paragraphs 106 to 107 in the joint judgment of Justices Callinan and Heydon – was that this was a matter of choice in that case. Whether to be discreet about one’s sexuality is a matter of choice about which country information can say nothing, and yet in that case the majority of the Court found that there was an error in the Tribunal failing to consider the possibility that if they were not discreet they would be persecuted and their discretion might have been a matter forced upon them. I paraphrase.

Your Honours, accordingly we say that this is a case in which, as in Khawar, the full facts were not considered by the Tribunal and it is a case in which there are good prospects of this Court returning the matter to the Tribunal upon consideration. Might I add that the passages to which we refer in the two English cases suggest that the construction point, which is one which has not been directly addressed in this Court in the past, is one about which an issue of principle arises. If the Court pleases.

GLEESON CJ: Thank you, Mr Basten. We do not need to hear you, Mr Cavanough.

The decision of the Full Court of the Federal Court in relation to the matter raised by the applicant turned upon factual considerations and in our view does not raise the question of principle which the applicant seeks to agitate. The case is not a suitable vehicle for the consideration of that principle and we are not persuaded that the interests of justice require a grant of special leave to appeal.

The application is refused with costs.

AT 11.55 AM THE MATTER WAS CONCLUDED