SHBB v MIMIA [2004] HCATrans 291 (11 August 2004)

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SHBB v MIMIA [2004] HCATrans 291 (11 August 2004)

Last Updated: 17 August 2004

[2004] HCATrans 291

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A257 of 2003

B e t w e e n -

SHBB

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 ADELAIDE ON WEDNESDAY, 11 AUGUST 2004, AT 2.59 PM

Copyright in the High Court of Australia

MR S.C. CHURCHES: If it please the Court, I appear for the applicant. My junior, MR S.D. OWER, is detained in the other list. (instructed by Refugee Advocacy Service of South Australia Inc)

MR P.J. HANKS, QC: If your Honours please, I appear with MR M.J. RODER for the respondent. (instructed by Sparke Helmore)

GLEESON CJ: It might be convenient if we start with you, Mr Hanks. The suggestion seems to be that the decision of this Court in Applicant S has undermined the basis on which the Full Court decided this case.

MR HANKS: We do not argue with that, your Honour.

GLEESON CJ: What should be the consequence then?

MR HANKS: The consequence is that one needs to consider whether that error on the part of the Tribunal caused its jurisdiction to miscarry.

HAYNE J: Why did it not if they asked the wrong question?

MR HANKS: Because, your Honour, there was more than one question.

HAYNE J: I understand that, but in this respect did they ask the right question?

MR HANKS: Did they seek to identify the particular social group in the orthodox way, as revealed by Applicant S? The answer to that question is no, they did not. Therefore, their decision that the present applicant was not a member of a particular social group was vitiated and that particular matter ought to be looked at again.

If it were not for the fact that the matters advanced to the Tribunal by the applicant did not, even if a favourable decision had been reached on that point, point to any well-founded fear of persecution by reason of membership of that group, and if we are correct in that construction of the record, then the applicant necessarily would have failed even if the Tribunal had conceded that he was a member of a particular social group defined by, as I think our friends would put it, separated young men, young boys, separated children, without the protection of a guardian. The claims that were made, we say, were claims merely of vulnerability to non-selective mistreatment. That is, vulnerability to the general conditions of insecurity, deprivation, risk of physical harm.

GLEESON CJ: Where do we most conveniently find that?

MR HANKS: Your Honour, we would need to look at a series of points throughout the application book. I would start, as my learned friend has started, with a letter which is at page 3 of the application book. It is a letter written on behalf of the applicant by his solicitors and your Honours will see at line 8, after having referred to other matters raising ethnicity and religion in the immediately preceding paragraph, in that paragraph the solicitors refer to the fact that:

the applicant is a young Afghan boy without an effective protector or guardian hence he would be more vulnerable to being targeted for mistreatment.

Our friends have focused on that word “targeted”.

GLEESON CJ: Is this a page with the 3 in the middle of the page or in the right-hand corner?

MR HANKS: Right-hand corner, your Honour. Does your Honour have the application book?

GLEESON CJ: I do, but I seem to be missing the relevant page.

HAYNE J: The Chief Justice gets many favours in this Court, Mr Hanks, and one of them is he gets imperfect application books apparently.

MR HANKS: It is really important that we be reading from the same text, I believe, if not necessarily in tune, but at least the words ought to be the same. Does your Honour see that paragraph?

GLEESON CJ: Thank you.

MR HANKS: I will take your Honours to a couple of these if I might. One of the foundations for our submission is that one ought to consider how the claim is put in its totality rather than selecting isolated passages here and there. To do that I need to take your Honours to perhaps six or seven places. There is an identical claim which is made on page 6 of the application book at about line 23. Your Honours will see that on that page, commencing at about line 17, there is a series of dot points. The fourth of those dot points is essentially identical to the passage that I had just taken your Honours to.

We draw your Honours’ attention to the preceding dot points which make it clear that what is being advanced here is a concern about vulnerability and general insecurity rather than a fear of selective mistreatment, that is, a fear that either authorities outside the law or State authorities will selectively focus on the applicant because he is a member of this putative particular social group and mistreat him for that reason. Rather, the fear that is being advanced - - -

HAYNE J: Given the asserted definition of “class” which is cast in many ways but essentially those who are vulnerable, does it not follow inevitably that he will be singled out because of vulnerability? In a sense you have self-defined the answer. That may lead to a great conundrum but a conundrum perhaps better resolved when the Tribunal has begun from the right question.

MR HANKS: It might be the conundrum which is identified in Applicant A, for example, as to whether the class is defined by reference to a fear of persecution. I accept that, your Honour.

HAYNE J: Thus the definition of “class” may perhaps shed light – it may not shed light – on the arguments that you now would seek to advance that say no Convention harm will follow because no singling out. Is that the essence of what you are now putting?

MR HANKS: I believe it is, your Honour. With respect, the way in which your Honour would dispose of our argument, as I understand it, is - - -

HAYNE J: Not dispose of it, Mr Hanks, but suggest that it may reveal the need to go back and then confront it as a whole, not piecemeal.

MR HANKS: I understand that, your Honour, but as I understood your Honour, the proposition that was put to me was that inevitably, by reason of membership of that class there would be a targeting, singling out, selective mistreatment.

HAYNE J: If you have defined your class by reference to vulnerability, the vulnerability of which you are speaking is vulnerability to adverse physical consequences.

MR HANKS: The class is defined by reference to its characteristics, which are - - -

HAYNE J: Young, unaccompanied, unguardianed.

MR HANKS: Yes. Then it is said by reason of being a member of that class, this person is vulnerable to what? If it is vulnerability not to mistreat but to the general level of insecurity, that does not constitute persecution within the Convention. It may constitute grounds for the Minister to exercise a discretion on humanitarian grounds but it does not constitute persecution as defined in the Convention.

HAYNE J: But it may also shed light on what one needs to do in defining the relevant class. It may not; I do not know. You are in the position, as I understand it, where you have to say wrong question asked by the Tribunal but support the decision in any event because decision inevitable.

MR HANKS: That is right.

HAYNE J: What I am suggesting is that the two questions may be related. What is the answer to that concern?

MR HANKS: Our answer is that there is no relationship between the two questions. They are distinct. One first identifies the particular social group. I think, as your Honour says, there may be some complexity about that task. Indeed, with respect, the observations made by three members of this Court in Applicant S suggesting that it would be done by reference to social, political, cultural norms from the country in question does suggest that it is a complex task, certainly one that requires a great deal of investigation and fact finding, but it is nevertheless a distinct task.

It is undertaken, we would submit, without reference to whether there is a fear of persecution. It is a separate exercise from that for the reasons advanced by some members of this Court in Applicant A. When that task is completed, one then asks: is it by reason of the membership of that class that this applicant has a well-founded fear of persecution? That is, is it the membership of the class which would generate the persecution of which the applicant has a well-founded fear? With respect, if one approaches it in that way, that is not a disorderly way in which to approach it and it is not erroneous. It is, in our submission, the correct way to approach it.

Moving one or two steps ahead, if it is the fact that the claims which were advanced on behalf of this applicant did not point to persecution by reason of the membership of the putative particular social group, then there is little point in coming to a positive conclusion as to whether that particular social group does or does not exist because its existence will not advance the applicant’s claim for protection. I trust that is how we would answer your Honour’s question.

Could I briefly take your Honours, if I might, to how the evidence emerged before the Tribunal. There are four references to what might be thought to be, perhaps superficially, persecution in the Tribunal’s record. Page 14 at line 30, although that number is not present on the page:

The applicant was asked what he feared when he left Afghanistan.

The applicant then articulates his fears. On the following page at line 16 there is at the commencement of the paragraph a matter which is presently irrelevant because this was essentially claimed by the applicant when he returned to the Bamian province the Hazaras would persecute him because he had been away. Then he says:

unsure whether he would be able to reach his home in Afghanistan safely, and he did not know if his parents were still there.

There is a reference to the danger that he might face as an individual who does not know where his parents are but, again, there is no suggestion of any selective mistreatment of him.

HAYNE J: But this was necessarily a view he had formed of conditions some years earlier, was it, by then? How long had he been here by that time?

MR HANKS: The hearing of the Tribunal, your Honour, is - - -

HAYNE J: No, it is referring to submissions of 2002.

MR HANKS: It is plainly after July 2002, or round about July 2002. I am not able to assist your Honour with the precise time, but it is between July and November 2002. As I understand it, he had left Afghanistan plainly when the Taliban was in power, so that is before November/December. He arrived in Australia in June 2001, so at the time that he left the Taliban would have been what we might choose to describe as the governing authority in the province from which he came, which was the Bamian province, I believe in the west of the country where most of the population are Hazaras.

They had been undoubtedly persecuted by the Taliban and the Tribunal makes a finding that at the time he arrived in Australia he did have a well-founded fear of persecution by reason of that ethnicity and his Shiite religion but, according to the Tribunal, the grounds for that fear had dissipated. So he is articulating concerns about possible insecurity, lack of safety, particularly travelling to his home province and concerns about the absence of his parents.

On the same page at the bottom of the page he raises a fear of being persecuted. I should just refer your Honours to page 15, line 26:

afraid of being conscripted by Khalili . . . his family will not be in Bamian if he returns there; he is a minor –

Khalili is identified on the same page as the governor of the Bamian province at the top of the page. So his concern was that the governor of the province might conscript him. Finally, on the following page there is some evidence given by a witness at line 5 who says:

the applicant is only 15 years old; that the Afghan economy is depressed - - -

GLEESON CJ: To ask him why he is afraid involves an element of ambiguity. His reason for fear might be because he is unprotected, his family is not there to help him. It does not follow that the motives of those who threaten him harm are the same as what he advances as the reason for his fear.

MR HANKS: Certainly, that is so, your Honour. Nevertheless, what is required is selective mistreatment by reason of, in this case, the membership of the claimed social group. Some degree of conscious selection or discrimination is essential, with respect. That is, it is not sufficient that there be a general policy of conscripting young men, for example, or conscripting even men of his age. That is not sufficient. That does not constitute, even after Applicant S, persecution unless it could be said that persons in his social group were singled out for that treatment.

That was what was lacking here and that was why the Tribunal ultimately came to the conclusion which it formulated on page 33. First the Tribunal dealt with the question of conscription and dealt with that at line 10:

I am not satisfied that boys or men residing in Bamian have continued to be at risk of being conscripted –

a finding of fact which we say disposes of any claim that this applicant might have had to fear persecution by way of conscription for his membership of a particular social group. Then at line 22 the Tribunal acknowledges “that the applicant is fearful” for a variety of reasons “of returning to Afghanistan”. None of those reasons, with respect, could possibly constitute persecution or selective mistreatment by reason of his membership of that class.

GLEESON CJ: What about what appears on page 45 in paragraph 19 in the reasoning of the magistrate?

MR HANKS: This is the magistrate’s judicial review.

GLEESON CJ: Yes, quite. What do you say about that?

MR HANKS: We say that the matters that were put forward on his behalf, the matters that were considered by the Tribunal, and we would say carefully considered, did not constitute persecution. This is not a case where the identification of the particular social group, the misidentification, let us say, has in some way disabled the decision-maker, the Tribunal, from establishing the facts. The facts were considered carefully, claims were advanced, but the claims themselves and the facts in support of them did not point to discriminatory or selective treatment. That would be our answer, your Honour. If your Honours please.

GLEESON CJ: Thank you, Mr Hanks. In this matter there will be a grant of special leave to appeal. We will adjourn for a short time to reconstitute.

AT 3.19 PM THE MATTER WAS CONCLUDED