SCAG & Ors v MIMIA; SCAL v MIMIA; SFQB & Ors v MIMIA [2004] HCATrans 477 (19 November 2004)

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SCAG & Ors v MIMIA; SCAL v MIMIA; SFQB & Ors v MIMIA [2004] HCATrans 477 (19 November 2004)

Last Updated: 9 December 2004

[2004] HCATrans 477

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A6 of 2004

B e t w e e n -

SCAG, SCAH AND SCAI

Applicants

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Office of the Registry
Adelaide No A7 of 2004

B e t w e e n -

SCAL

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Office of the Registry
Adelaide No A35 of 2004

B e t w e e n -

SFQB

First Applicant

SFRB

Second Applicant

SFSB

Third Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Applications for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 2004, AT 11.29 AM

Copyright in the High Court of Australia

__________________

MR S.D. OWER: If the Court pleases, I appear for the applicants in SCAG and SCAL. (instructed by McDonald Steed McGrath)

MS S.J. MAHARAJ: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

MR G.F. BARRETT, QC: If the Court pleases, I appear for the applicants SFQB, SFRB and SFSB. (instructed by Winters)

MR M.J. RODER: May it please the Court, I appear for the respondent. (instructed by Sparke Helmore)

GUMMOW J: We will hear from you, Mr Ower, then from Mr Barrett and then from Ms Maharaj and Mr Roder, so if you could approach the matter in that order.

MR OWER: If it pleases your Honour. Your Honour, in my submission, these two matters are an appropriate vehicle for special leave in that they raise, for the first time, for the consideration of this Court, the proper construction of section 91S of the Act. They also raise the issue of the obligation of the Tribunal to consider possible grounds for persecution for a Convention reason where that reason was not necessarily stated by the applicant at the Tribunal; a matter upon which different opinions have been expressed by members of this Court in Applicant S and Appellant S395.

HEYDON J: Can I raise a preliminary difficulty. Before one considers the questions that you are posing, does not one need to isolate a finding that your client would actually suffer some form of harm, whether it be harm that meets the description in the legislation? Do you not need a finding of a risk of murder or serious injury by reason of a blood feud?

MR OWER: In the matter of SCAL, your Honour?

HEYDON J: SCAG. Page 17 of SCAG:

the Tribunal has serious doubts as to the truth of the claim that he will be harmed because of a blood feud if he returns to Albania.

Then some reasons are set out which underpin, as it were, those doubts. It is true that there is no positive finding that he will not be harmed, but does not the applicant have to establish a finding that he will be harmed before going on to consider later questions?

MR OWER: In this particular matter, your Honour, the Tribunal proceeded on the assumption that there would be harm in its consideration of section 91S and its application to the facts.

HEYDON J: Not quite so, is it? Did they not say, at line 17, “even if [we] were to give the applicant the benefit of the doubt” and so on - - -

MR OWER: I would have to concede, your Honour, that that would be one possible interpretation of the Tribunal’s reasons. However, the Tribunal has expressly gone on to consider the application of section 91S and, in my submission, if it has erred in its construction of section 91S, it is an error that has gone to its jurisdiction, irrespective of its doubts in relation to the blood feud underlying the claim.

HEYDON J: But if this Court propounds opinions on important questions of law, assuming a fact that was never established before the Tribunal and cannot really be established in any higher institution, it is doing no more than giving advice, is it not, for future cases? It is not saying anything necessary for the decision of SCAG. It is giving an advisory opinion.

MR OWER: Your Honour, in this particular case, I would submit that the crux of the Tribunal’s reasoning is its construction of section 91S. If this Court was to hold that that reasoning was erroneous or involved jurisdictional error, the matter would be remitted to the Tribunal where the Tribunal, probably in light of this Court’s reasoning, would make firm findings of fact as to the existence or otherwise of the blood feud.

HAYNE J: But it would not have been a decisive error on the Tribunal’s part if, in truth, an anterior fact had never been found.

MR OWER: That is correct, your Honour. If the Court construes the reasons in such a fashion, there is probably not much I could say against it.

KIRBY J: You have to say that if the Tribunal had been of the view that the harm would not happen, then there was no point in their going on to consider the application of the statute - - -

MR OWER: Yes, your Honour, and I would submit that is the proper - - -

KIRBY J: - - - and that the fact that they did go on to deal with the statute indicates that there is a sufficient factual foundation, and the only way you and your client can challenge this is by doing so now in this Court.

MR OWER: That is the submission for the applicants and both this matter, SCAG - - -

GUMMOW J: We will take a short adjournment.

AT 11.38 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.42 AM:

GUMMOW J: Yes, Mr Ower. You had been taken to page 17 of the application book in matter No 4.

MR OWER: Your Honour, in both matters, SCAL and SCAG, the Tribunal did express doubts as to the factual underpinnings of the blood feud, but in my respectful - - -

HEYDON J: I am afraid it is worse than that. No, no, in SCAL they did not express doubts. Did they not actually make a finding? They concluded that:

there is no real chance he will face persecution on account of any blood feud –

at the top of page 16.

MR OWER: The form of language used by the Tribunal in the matter of SCAL was that it was not satisfied in the sense it had not formed a positive state of satisfaction as to the existence of the blood feud, but, in my submission, it should be read, especially in light of its finding that it was possible that the applicant’s father had in fact killed someone, that a blood feud may exist. In such circumstances, the state of non-satisfaction in relation to that fact may be taken into account in assessing whether the applicant – in both this matter and in answer to your Honour’s earlier questions in relation to SCAG – whether that applicant has a well-founded fear of persecution in the future.

If I could take the Court to the applicant’s summary in the matter of SCAL, page 69, paragraph 33, there is set out an extract from the decision of the Chief Justice and Justice McHugh in the matter of Abebe, in which they - - -

KIRBY J: We know all this, but you were present, no doubt, when the Court decided matter SBBA this morning - - -

MR OWER: Yes, your Honour.

KIRBY J: - - - and these are very important questions, raising the two succeeding sections of the Act which have been enacted, and, on one view, designed to reduce the scope of the Convention. From the point of view of the Court, it is much better for us to deal with such issues where we have a clear factual substratum, clear factual findings, which give a basis for relief if a view of the statute is accepted, and clear determinations by the Federal Court of what they take to be the meaning of the statute, and such cases will present.

Now, the question that is posed to you is whether these cases are not in the same class as SBBA, which we dealt with this morning, if they do not have the same flaw, from the point of view of this Court. We have to consider whether the matter is ripe for our consideration.

MR OWER: In my respectful submission, your Honour, both of these matters are ripe, because in both matters two individual Tribunal members considered it significant, after making the assertions as to factual matters, to go on and actually consider the proper construction of section 91S, which in turn led Justice von Doussa at first instance in both of these matters, despite these concerns about the factual underpinnings of both matters, to consider the proper application of section 91S in light of the earlier comments of Justice Merkel in SDAR.

KIRBY J: There is another matter that concerns me – and this does not seem to have been given consideration – and that is whether these cases are not in the Khawar type case. That is to say, let it be a family feud, but if the state in the country here – in this case, Albania – does not give protection, whether that is a matter which attracts the Convention. That matter does not appear to have been considered. It does not appear to have been given the factual substratum of findings. That looks to me to be a very promising way in which cases of this kind can be brought up into the Convention system, and it is not really presented to us in a way that we can deal with it.

MR OWER: Yes, your Honour, that particular argument has been raised before Justice Selway in a number of single instance decisions in respect of section 91S. In this matter, there were no factual findings - - -

GUMMOW J: Maybe they are on their way here.

MR OWER: They might be, your Honour. In this particular matter, the Tribunal did not turn its mind to the issue of the motivation of the Albanian state in failing to provide state protection, because, in our submission, it simply failed to address this question. It became fixated upon the claim that persecution was feared for the reason of family membership, when it should have looked at all of the information before it and considered whether there was another possible social group, and, if so, whether the motivation of either the state or the non-state actors provided the necessary Convention ground.

In my respectful submission, the Tribunal simply did not address those questions, because it did not address the preliminary question of whether the possible social group existed. In that manner, this case is similar to the recent decision of this Court in Applicant S, where the Tribunal’s factual findings were not necessarily sufficient by virtue of the fact that it had asked itself the wrong question originally, in relation to the legislation.

KIRBY J: Which was Applicant S? There are so many of these cases now they do not necessarily remain in the forefront of my mind. Which one was Applicant S?

MR OWER: Applicant S, your Honour, involved the case of the Afghani youth or young man, who was at risk of conscription by the Taliban.

KIRBY J: Yes.

MR OWER: This Court found that it was open to consider that that particular social group arose on the facts, despite the fact that it was not expressly claimed as a reason for his fear before the Tribunal.

Your Honours, if I could turn to the decision of Justice von Doussa at first instance in both of these matters and, in particular, the decision in SCAL. Justice von Doussa rejected the possibility that the alternative social group – that is to say, persons who were subject to or under obedience to the Kanun – could exist, on the basis that he felt that it fell within the paradigm of this Court’s comments in Applicant A.

The simply point of distinction we would ask this Court to draw between the facts in this case and those in Applicant A is that the form of persecution feared is not necessarily the identifying characteristic of the social group. The form of persecution feared in this case is violence by non-state actors, and the social group is not being constructed on the basis that it consists of people who are at risk of violence from non-state actors. It proposedly consists of - - -

HEYDON J: Do they not form a group subject to a custom or tradition which exposes them to violence from non-state actors if one member of their family murders a member of another family?

MR OWER: That is correct, your Honour, and that is how we would characterise the social group, namely, that it is the custom or customary law of the Kanun which provides the characteristic which is common to all members of the group, not necessarily being at risk to violence by non-state actors, in a manner similar to the facts of the matter of Chen Shi Hai, the “black child” case. The fact that the child was a “black child” did arise from the application of general laws, but the persecution in that case was not necessarily the application of those laws, but discrimination they would face by virtue of being a “black child”.

However, when that argument was put to the Full Court in both of these matters, the Full Court put forward three reasons why it felt it was not necessary to deal with that argument, and those reasons appear at paragraph 17 to 19 of the Full Court’s decision. In particular, at paragraph 19, the first reason put forward is that the fear of membership claimed was only fear on the basis of membership of the family. In my respectful submission, that is contrary to the authority of both Justice McHugh in Ibrahim’s Case and the two decisions of the House of Lords cited in the applicant’s summary, Sepet and Sivakumar, in that persecution and the reason for that persecution must exist in the mind of the persecutor.

So the question that the Full Court should have considered is what was, in light of the language of section 91R, the essential and significant reason for the persecutors – in this case, the other family or, as your Honour Justice Kirby has pointed out, quite possibly the Albanian state – in persecuting this particular applicant, or both of these applicants in SCAL and SCAG?

KIRBY J: But the Albanian state only comes up if a case along the lines of Khawar is run, and that does not appear to have been the case here.

MR OWER: Yes, your Honour, it was not put on those terms. At Tribunal level, it was simply put on terms of family - - -

KIRBY J: Does that not then fall into the same category of SBBA this morning, that is to say, we are being asked to deal with a matter where there is an important ingredient potentially available that was not really explored, and which, you tell us, has been explored in cases before Justice Selway. Would it not be in those cases that we would have the opportunity to consider these issues in a way that is ripe and that is drawn on all of the Court’s jurisprudence in this area? See, if Khawar is not mentioned, a very significant weakness is presented to this case.

MR OWER: However, your Honour, if the Tribunal, in my respectful - - -

KIRBY J: Was this decided before or after Khawar? Khawar is quite a way back now.

MR OWER: Both decisions of the Full Court and Justice von Doussa were decided after the decision in Khawar. Justice von Doussa does refer to Khawar’s Case at paragraph 6, though, with great respect to his Honour, he does seem to misconstrue it in that he seems to suggest there needs to be both motivation on behalf of the non-state actors and the Albanian state in relation to persecution. However, it does not necessarily feature in his reasoning and, furthermore, the Full Court did not see the need to address that issue either.

KIRBY J: No doubt because of the way the matter was argued.

MR OWER: Quite possibly, your Honour. The second reason that the Full Court in SCAL put forward as being a reason why there was no need to turn to the argument put as to Justice von Doussa’s error was that the blood feud did not necessarily exist. I have already addressed the Court as to why, in the applicant’s case, both SCAL and SCAG, it is possible that the Court could have addressed the matter, despite the apparently weak factual findings.

The third matter that the Full Court put forward as not requiring it to consider the argument about Justice von Doussa’s reasoning was that the recast social group claim was not put to the Tribunal. Again, in my respectful submission, that is clearly contrary to this Court’s subsequent approach in Applicant S. The decision of the Court below in Applicant S, and, in particular, the decision of Justice Stone, summarises the relevant principle which, in our submission, should have been applied in this case.

For those reasons, your Honours, we would submit that the Court should have considered whether Justice von Doussa had erred, and, in
particular, whether he had erroneously applied the decision in Applicant A. It is for those reasons we submit that this would be an appropriate vehicle for a grant of special leave. Those are my submissions, if it pleases.

GUMMOW J: Yes, thank you, Mr Ower. We will hear from Mr Barrett.

MR BARRETT: May it please the Court. The factual situation in this case is not dissimilar to that in the - - -

GUMMOW J: I have been looking at page 21.

MR BARRETT: That is right. Yes, the - - -

GUMMOW J: “serious doubts” - - -

MR BARRETT: What the Tribunal has there done - - -

GUMMOW J: It is all very indecisive, it is very indecisive.

MR BARRETT: That is so, that is so. Over the page, the Tribunal begins, having expressed doubts about the applicant’s evidence and claims, it goes on to say:

However, even if the Tribunal gives the applicants the benefit of the doubt and accepts that the applicant mother –

and so on, then the section disentitles them to relief. It would have been better, I accept, had facts been found or not found as the case may be, so that we would know where we stood, but, of course, the applicant is left in no choice but to - - -

GUMMOW J: We understand that, yes.

MR BARRETT: I accept the difficulty. Could I just draw the Court’s attention to matters which the Tribunal did speak on and make findings on, and they begin at page 18 of the appeal book. I will not read them, but can I summarise them in this way. At line 19, the Tribunal says it:

accepts that the above information about blood feuds is accurate –

What it thereby accepted was this, that the Kanun law prescribes revenge at various levels, including killings. That is on page 15. It found and accepted that there is a chain-like reaction to such a feud over generations and it includes children, page 16.

Since the collapse of Communism in 1991, vendetta killings have soared – and “soared” was the word used, that is at page 17 – many killers using rules of Kanun as a cover for ordinary crime. That is at page 17 as well. In most cases – again, the finding of the Tribunal – in most cases, it is not the traditional rules of Kanun that are being applied, but a self-selected interpretation, and, finally, that blood vendettas are particularly rife in and around the town of Shkoder – page 17 as well – which is the area and town from which the applicant comes. I am speaking of the applicant in the singular if I may. The applicant wife is the applicant I am referring to, SFQB. The second and third applicants are her children.

So what the Tribunal did not do, as I have already accepted, is make findings one way or the other about the claims. Instead, it proceeded to deal with its interpretation of section 91S. What it therefore contemplated was that the appellant may return to Albania with a well-founded fear of her own life and that of her children, but that she, the Tribunal member, was obliged to disregard that possibility by virtue of the terms of section 91S.

Can I suggest that although we come to this Court in a slightly convoluted way, relying on the assumption of the Full Court in SCAL that the interpretation of Justice Merkel in SDAR is correct, and that also of Justice Keifel in QAAD. In our submission, we preserved our position when before the Full Court, so that the matter is fit for argument before this Court.

Can I then put briefly the argument that I seek to put, not in terms of seeking, if I might put it this way, to redefine the particular social group as has been attempted in other cases, but simply to speak of the interpretation of section 91S. In my submission, Article 1A(2) of the Convention seeks to protect any person who has a:

well-founded fear of being persecuted –

and I underline the following words –

for reasons of –

then the enumerated, designated criteria, that is –

race, religion, nationality, membership of a particular social group or political opinion –

In my submission, in reality, it is not for what is described as the designated reasons that persecution occurs, but for the underlying reason why there is persecution. It is an irrational and, in the eyes of the Convention signatories, an unacceptable underlying reason, such as colour, the God one worships, the manner of worship or manner generally.

The Convention does not, and it cannot, concern itself with these underlying reasons because their number is infinite. What it does is, it selects designated classes, and so long as an applicant is a member of that class and has a well-founded fear of persecution – I will leave aside the other qualifications that do not concern us – he or she is entitled to be protected.

There are four fairly specific designated classes, and one open-ended one, if I can put it that way. The open-ended one, of course, is the particular social group, and family has been recognised in Australia as a possible particular social group.

Parliament has been concerned with some of the consequences of those findings by courts, which have allowed that families may be regarded as a particular social group. What the Parliament did not do, was to say simply and clearly, for everyone to understand and discuss, that Australia would not accept protection obligations for family members who had a well-founded fear of persecution on account of their family membership. The Parliament could have done so, but it did not.

What the Parliament passed instead was section 91S. In my submission, it failed to achieve its aim in the words that it has used in section 91S. Paraphrasing it, it says that an applicant’s fear of persecution or actual persecution will be disregarded, must be disregarded, if it is reasonable to conclude that it would not exist but for another family member’s fear, which in turn is not a reason mentioned in Article 1A. I apologise if others find it simpler to understand section 91S, but I have sought to paraphrase it in that way because I find - - -

GUMMOW J: Yes, I did not find it easy to read either. Yes, it helped.

MR BARRETT: I hope I have done so accurately.

GUMMOW J: Yes.

MR BARRETT: The operative word is “reason”. It is said in this case, that the reason for the applicant’s fear is that other members fear revenge for harm done to another family. The other members of the applicant’s family do not fear persecution by reason of the other designated reasons in the article. They do not fear persecution by reason of their race, or their religion, nationality, political opinion, et cetera. Or do they fear persecution for being a member of any other particular social group other than family? So it comes fairly within, certainly, the intentions of the Parliament.

They fear precisely because they are members of a family which is thought to have injured members of another family. What they fear is motivated by revenge. Revenge is the underlying reason for their fear. But, in my submission, none of the underlying reasons for anyone’s persecution is mentioned in the Convention for the reasons that I have said: their numbers are infinite, it is impossible to do so.

Nevertheless, people may be protected by section 91S. There is thus, in my submission, an ambiguity in the word “reason” in section 91S. The Parliament has not used words sufficiently clear to exclude family members from protection against persecution, which they face by reason of their family membership. In my submission, fundamental rights such as freedom from persecution cannot be withdrawn by imprecise words of the sort in section 91S.

To paraphrase the remarks of Chief Justice Gleeson in S157, if Parliament intended to remove such a fundamental right, then section 91S does not suffice to manifest such an intention. May it please the Court, they are my submissions.

GUMMOW J: Thank you very much, Mr Barrett. We do not need to call on you, Ms Maharaj or Mr Roder.

What I am about to say represents our conclusions on the applications together listed as applications 4 and 5 on the list this morning.

In our opinion, serious questions do arise on the construction of section 91S of the Migration Act 1958. In a proper case those questions might well attract a grant of special leave from this Court. In this sense, these applications which, as I have indicated, have been heard together, present an issue similar to that decided earlier today when dealing with application No 3, SBBA v Minister for Immigration, Multicultural and Indigenous Affairs.

The highest that the applications reached before the Refugee Review Tribunal was an assumption which the Tribunal was prepared to make in favour of the applicants that the facts were as alleged by them so that the necessary “well-founded fear” was established. This is not a satisfactory foundation for consideration of the meaning of section 91S by this Court.

As well, the Tribunal and the Federal Court do not appear to have considered or been asked to consider the application to the facts of the decision of this Court in Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1.

The Court is informed that in other cases of alleged blood feuds, Khawar has been considered by the Federal Court or is awaiting consideration by the Federal Court. Such a case might present the suggested statutory ambiguity in section 91S in a complete framework.

There are no reasonable prospects of success in these applications as presented, for the reasons I have indicated and, accordingly, special leave is refused and refused with costs.

AT 12.07 PM THE MATTERS WERE CONCLUDED