Applicant MZKAO v MIMIA [2004] HCATrans 353 (10 September 2004)

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Applicant MZKAO v MIMIA [2004] HCATrans 353 (10 September 2004)

Last Updated: 16 September 2004

[2004] HCATrans 353

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M3 of 2004

B e t w e e n -

APPLICANT MZKAO

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 SEPTEMBER 2004, AT 12.37 PM

Copyright in the High Court of Australia

MR J.R. HAMILTON: If the Court pleases, I represent the applicant in this application. (instructed by Di Mauro Solicitors)

MR S.P. DONAGHUE: If the Court pleases, I appear for the respondent. (instructed by Clayton Utz)

HAYNE J: Yes, Mr Hamilton.

MR HAMILTON: Your Honour, the special leave questions said to arise are as follows. In the finding of the Federal Court, it looked at three issues in the grounds of appeal. Issue No 1 is at application book page 45 “PERSECUTION BY REASON OF RACE”. In the penultimate paragraph it was found that because the applicant had gained regular remunerative employment over a 14-year period he had some degree of seniority, he was not discriminated against in terms of his employment. It talks about “placed weight on . . . Country Reports on Human Rights Practices”. I note that particular report, your Honour, at no stage addresses anything to do with employment. It is purely racial relations. The applicant has always said he will never progress to a level that he feels he should be, he is discriminated against.

HAYNE J: Well, in that regard, what do you say about the first four or five lines on page 46 of the application book where it is said that:

it was conceded [in the Full Court] that there was no claim of that sort –

that is, a claim of denial of access to the professions –

made by the appellant to the Tribunal and that there was no evidence - - -

MR HAMILTON: That is correct, your Honour. What we say is that the applicant’s submission was based on his own experience in India and he arrived in Australia for the second time in July 1997. That is at the applicant’s argument page 62 opposite number 16. He had never experienced discrimination as regards the professions. The argument there is, given that the Tribunal was well aware that Chan says if you may be professionally qualified – if you deny professions or, inferentially, deny the chance to practice as a professional, that can be persecution. The question is, should he have been put on notice?

All applicants have to make their own cases and had he worked as a professional in India it would have been up to him to say he had been discriminated against, but the evidence was he completed his qualifications at the time he basically came to Australia. So should he have been put on notice that there was nothing there – he had no direct evidence of it – and should he have made inquiries? That is the evidence just on the professional matter.

HAYNE J: But is this point about denial of access to the professions at the heart of the complaint that you make?

MR HAMILTON: There are a couple of areas. That is one of the areas of employment, but it is not the main one in employment, your Honour. The main point where we say special leave application considerations arise is that it was found regarding employment that if you have employment and you are paid, that is enough. The Tribunal found at application book page 6, the top three or four lines:

While accepting that the applicant might have limited job prospects in India due to his racial origins –

It refers to that. It also refers on the page before that, 5, to the Refugees Handbook on Procedures. It talks about, in the indented paragraph, the second-last line of the top paragraph, “serious restrictions on his right”, et cetera, but that is qualified in the paragraph below which says that even if it is not serious, if he fears it. What the applicant says in this area, the whole matter has been decided on section 91R(2)(b) and that is basically that you cannot claim persecution unless the persecution suffered is so serious that your employment cannot be sustained, and that is what the Court of Appeal found as well at page 46, your Honours:

‘serious harm’ may be a ‘denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist’.

The question is, since that has come in, there has been no decision of this Court that I am aware of, your Honours, that says that has changed significantly what Chan has said and what the Handbook on Refugees indicates.

CALLINAN J: When you say “what Chan has said”, are you referring to what Justice McHugh said in - - -

MR HAMILTON: Yes, your Honour.

CALLINAN J: Well, can I draw your attention to the use of the word “may”. His Honour said it may constitute persecution.

MR HAMILTON: Yes, your Honour.

CALLINAN J: It may be a question of degree, and if you look at what the Tribunal said at page 5:

He also gained regular, remunerative employment in the private sector.

And over the page:

While accepting that the applicant might have limited job prospects . . . he has a lengthy history of remunerative employment there, including in a job in where he held at least some degree of seniority.

Now, all I am suggesting to you is that it may be question of degree and that the finding of the Tribunal is a finding of something more than a job at a mere subsistence level.

MR HAMILTON: Your Honour, yes, the applicant does not say it was only subsistence.

CALLINAN J: In other words, not all discrimination may necessarily amount to persecution. It may be a question of degree.

MR HAMILTON: Yes, your Honour, but it would seem from the decision in the Federal Court that much reliance has been placed on seriousness.

CALLINAN J: From the passage you have drawn our attention to, that seems to be so, but that is not the finding of the Tribunal. The Tribunal has certainly found, as I have pointed out to and as you accept, something way above, or certainly considerably above, subsistence level employment.

MR HAMILTON: Yes, your Honour, that would be the applicant’s submission. It is certainly not denied that he had enough to live on. Is that sufficient though? Chan might suggest that if you are not – a passage from Chan quoted:

the denial of access to employment . . . freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly –

et cetera, but it could also be said freedoms to just progress in your employment. There is no doubt the person did have employment, but it is referred, I think, in the Federal Magistrate’s decision that he was last employed in 1997 as a senior assistant in some capacity. It is to say that – he accepted that he has been discriminated against but he has certainly made enough to survive. We would say that can still amount to persecution. and that matter seemed to be addressed. Your Honour, I will take you no further on that one.

The second decision relates to the country information and saying that people of his religion – the finding was by the Tribunal that there was not enough evidence to show that he would face discrimination on the country information available. Your Honours, at the bottom of page 5 it referred to the United States Department of State Country Reports on Human Rights Practices, 2001.

Your Honours, the respondent in the submissions says that these attacks have been mainly on churches, social workers, priests and some category other than normal communities. It is the submission of the applicant – I will take you there if you wish – it is absolutely replete with attacks on communities and mainly by Hindu fundamentalists. That is all the evidence shows and particularly I would take you to the bottom of page 11. It says these “numerous attacks against Christian communities” – it mentions missionaries, but communities as well – took place “during the year”. That would be during the year - - -

CALLINAN J: Mr Hamilton, page 6 about line 12:

The applicant has not made any claim of persecution in relation to religion.

MR HAMILTON: Your Honour, apparently he did not at the Tribunal stage, but later on his - - -

HAYNE J: Well, can you later on? How can you when the proceedings thereafter are in the nature of review rather than appeal?

MR HAMILTON: Your Honour, in this instance the Tribunal noted that nothing had been claimed about race but said, “I am going to consider it anyway”. So the submission is that if they did consider it and had got it wrong, the applicant can still claim that as an appealable ground.

HAYNE J: Well, it is review; it is not appeal. The degree to which judicial power is engaged in respect of refugee decisions is sometimes liable to misconstruction. The only function that is exercised in the exercise of judicial power is a function of reviewing the, in effect, fairness and other statutory requirements that are imposed. It is not appeal.

MR HAMILTON: Your Honour, when the Tribunal hears a matter, it hears it de novo. If an applicant does not put forward an argument on their behalf, it could be seen as – by the Tribunal as overlooking a matter. If the Tribunal says, “I will look at that” but makes a jurisdictional error, the question is - - -

CALLINAN J: Well, what is the jurisdictional error?

MR HAMILTON: It says that – and looking at the country information – it cannot be adduced from that that he has a reasonably well-founded fear of persecution.

CALLINAN J: Well, that is a finding of fact, is it not?

MR HAMILTON: It is a finding of fact, but we say it is so illogical and so unreasonable – your Honour, I will just take you to the two areas, or the one area, where that finding is based, and that is on the top of page 12:

An official inquiry by the National Commission for Minorities into the roughly 400 attacks on Christians between December 1998 and December 2000, found only random acts of unconnected violence, not a pattern of religiously motivated hate crimes.

That has been relied on. In another piece of country information – it is addressed at page 14, and this is, as I said, a different piece. It is DFAT June 2000. It says:

Sweeping changes were made to the Minorities Commission by the government late last year, replacing the entire board. The previous chair of the commission had been highly critical of lack of support he had received from the government during his tenure. The new appointees officially took up their positions in late January.

That would be January 2000.

Many human rights groups are sceptical about the commission members who were hand picked by the BJP government.

That is what he has relied on. There have been reports, human rights - - -

CALLINAN J: But there is evidence each way. There is some other country information that says that they are discriminated against and at risk and other information that says that any difficulties can be and are being addressed.

MR HAMILTON: Your Honour, what the applicant would say is that all the evidence there is there are attacks on Christians. What the Tribunal and the court relied on is not so much – well, they relied on an opinion. They had all this information in front of them and they had an opinion from this Commission for Minorities, but there is evidence before them that that may well not be correct, that may well be biased.

HAYNE J: That may make their job difficult, but to what ground does that go in the proceedings in the Federal Court and what is the leave point that thus emerges?

MR HAMILTON: The leave point, your Honour, is that if before a Tribunal there is a wealth of country information pointing in a particular direction, to what extent is natural justice or fairness done when that is overturned by – acknowledged a finding of fact in one small area.

HAYNE J: Yes.

MR HAMILTON: Your Honour, the second-last point we said is for leave for appeal, to what extent do facts have to be relied on at the time of the decision. The Tribunal acknowledges at page 4, paragraph 3:

Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist –

The country information suggests that the discrimination has occurred particularly since the BJP came to power in March 1998 and continued through 2000. What may be country information may vary with the circumstances. In this case, the evidence is that there has been a rise of attacks in 1998 to 2000. The Tribunal decision was handed down in October 2002, so over a four-year period since the BJP got in there is two years evidence of attacks and there is nothing for the final two years. Did that put the Tribunal on some sort of obligation to try and find out what happened in the two most recent years or one and three-quarter years?

Your Honour, the last point, it is said that weight was given in the decision-making process to the fact that the applicant had returned to India voluntarily on three occasions. On page 62 opposite number 16 it says:

The applicant first arrived in Australia on 9 March 1994, on a tourist visa, and left on 6 June 1994.

I would suggest that that was not a voluntary return, your Honour. It is possibly that the tourist visa ran out. He then came back to Australia on 7 July and has remained here ever since, but during the period July 1997 to January 2000, some two and three-quarter years, he returned home twice at Christmas time for a period of a month. Now, he said that lends weight to the fact that you do not have a reasonable fear of persecution.

Your Honours, it is submitted that the wrong question has been asked. If he claimed that the authorities were after him or people were trying to kill him, any period in the country at all could be argued that he does not have the fear of persecution. This is not the case and we would say just simply he has claimed persecution in employment and also that there is harassment, et cetera, towards religious people. Over that period to return for two one-month periods and to place weight on the fact that he does not have a subjective feeling of fear is, it is submitted, so unreasonable that no reasonable person could have made it. Your Honour, that is the submission.

HAYNE J: Thank you, Mr Hamilton. We need not trouble you, Dr Donaghue.

The applicant shows no arguable case of jurisdictional error by the Refugee Review Tribunal. Accordingly, an appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave. Special leave to appeal is accordingly refused and refused with costs.

AT 12.55 PM THE MATTER WAS CONCLUDED