WAHV v MIMIA [2005] HCATrans 434 (17 June 2005)

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WAHV v MIMIA [2005] HCATrans 434 (17 June 2005)

Last Updated: 24 June 2005

[2005] HCATrans 434

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A27 of 2004

B e t w e e n -

WAHV

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 17 JUNE 2005, AT 12.52 PM

Copyright in the High Court of Australia

MR P.C. CHARMAN: May it please the Court, I appear for the applicant. (instructed by Refugee Advocacy Service of South Australia, Inc)

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

GUMMOW J: Now, this matter fixes upon section 91R of the Migration Act. A question is, what was the error in the treatment of 91R and its application by the Federal Court on the appeal from the Federal Magistrates Court?

MR CHARMAN: Yes, I can indicate that the Federal Magistrates Court dealt with the matter before S157, so it dealt on a very narrow basis, so to some extent it is the judgment of Justice Nicholson that is the relevant judgment.

GUMMOW J: Well, it is. That is what we would be taking an appeal from.

MR CHARMAN: Yes. Your Honour, if I could take you to the application book at page 64 at 40. Now the first paragraph there, your Honours, refers to I think a fairly neutral contention, but it is the paragraph that starts at about 48:

Having permissibly reached that point it was open to the Tribunal to take the colour of ‘serious harm’ beyond the list of matters in s 91R(2) as requiring something in the same serious character.

Now, it is those words that we submit causes some difficulty, given the fact that section 91R(2) is a list. Section 91R(1)(b) is the general proposition of “serious harm” and that the list under 91R(2) expressly says is not limited, or it does not limit that that flows from section 91R(1)(b).

We contend that his Honour in that paragraph effectively does limit “serious harm” to something which must take the colour of the list in 91R(2) and is something requiring something in the same serious character. The result of that, in our contention, is that whilst his Honour accepted there may be other matters which could be listed - - -

CALLINAN J: Mr Charman, could we go to 91R, which is set out at 56, subsection (2):

Without limiting what is serious harm . . . the following are instances of serious harm –

Now, having regard to that, what is wrong with what Justice Nicholson said in the paragraph of which you are critical, paragraph 33?

MR CHARMAN: What is wrong with that, with respect, your Honour, is that whilst they are instances, the beginning of paragraph (2), as your Honour has indicated, says “Without limiting” and that by suggesting that further examples may need to take the colour of those matters in section 91R(2) - - -

CALLINAN J: Well, of course, because these are instances. They are examples. They are intended to be typical sorts of cases and, therefore, other cases, one would expect, that are not specifically covered will have the same colour. The word “instances” points to that, does it not?

MR CHARMAN: With respect, “the following are instances”, but that in no way reduces the importance of “Without limiting” or, indeed, (1)(b), which is a general proposition. Perhaps if I could put an example to your Honours which may indicate what we say is a limiting effect of what his Honour had to say in that paragraph. It is accepted that the applicant in this matter was not allowed to touch food in public places. Now, of itself that may well be merely discrimination.

It is accepted that Sabean Mandaeans generally do not have the same protection of the courts. Now, that may well be mere discrimination, but if the applicant were to touch food, for example, in a marketplace and the storekeeper was to beat him up as a result of that and he was not going to get the protection of the courts, then that storekeeper could assault him with impunity as a result of the combination of a couple of instances of serious harm which may or may not be contained within 91R(2), but the cumulative effect of matters which of themselves may not amount to persecution but be mere discrimination do amount to persecution.

We say that, with the greatest respect, his Honour in that paragraph refers to the instances as if those other matters in 91(1)(b) would be a further list of matters of the same nature and the same character of those listed in 91R(2), and we say that is, with respect, not correct. It could be a number of minor matters which the cumulative effect of is to amount to persecution. That is where we say, with the greatest respect, that that paragraph reduces or limits the scope of 91R(1)(b) by reference to the instances in 91R(2) in an impermissible manner.

The special appeal point, if perhaps I could deal with that, is that what can amount to serious harm under section 91R(1)(b) which does not fall within section 91R(2). We say that the mere fact that 91R(2) contains the word “instances” does not in any way suggest that those should be regarded as the type of serious harm or type of examples which amount to serious harm under 91R(1)(b). If that was to be the case, with respect, it would simply be other instances, rather than the cumulative effect of matters which may be contained to some extent in that section - - -

CALLINAN J: You could have a series of events which could in total constitute an instance. Nothing that his Honour said denies that possibility. His Honour did not say that you needed only one occurrence or one event.

MR CHARMAN: With respect, we say that the words “take the colour of ‘serious harm’ beyond the list of matters in s 91R(2) as requiring something in the same serious character” - - -

CALLINAN J: But even the list of matters in subsection (2), any one of them could encompass a series of events, a series of events constituting “a threat to the person’s life or liberty”, it does not mean that there needs to be only one occurrence or one event – “denial of access to basic services”. Nothing that his Honour says about the section denies that possibility.

MR CHARMAN: But it does deny, in relation to this particular matter, your Honour, given the accepted discrimination before him, that he did not deal with the cumulative effect of those matters before him. Perhaps if I could take your Honours to the next paragraph at page 65 of his Honour’s reasons, where he specifically states at line 10:

Furthermore, all the dicta relied upon in relation to the nature of the persecution must be understood in the context of the enactment of s 91R and cannot be read as now alone setting the applicable standard.

With respect, your Honour, that suggests on our contention that his Honour clearly viewed that 91R narrowed what had flowed from those cases I have referred to in the summary of argument, Chan, Ibrahim and Applicant A.

CALLINAN J: But it may have done that. Those cases were not an application of 91R. That may have been the whole purpose of 91R.

MR CHARMAN: Your Honours, in relation to that, I have referred in the bundle of cases to a decision of NBFP. Perhaps if I could briefly take your Honours to some parts of that - - -

CALLINAN J: Tell me what the point is. What is the point? What does that case establish?

MR CHARMAN: That deals specifically with the point, your Honour, that you have just raised. It refers at paragraphs 55 and 59 in a memorandum explaining 91R that at 55 of that judgment, which is the first explanatory memorandum:

In addition, serious harm can arise from a series or number of acts which, when taken cumulatively, amount to serious harm of the individual.

At 59 there is a further memorandum making it abundantly clear that the list in 91R(2) was not intended to narrow what had previously flowed from the legislation prior to the enactment of 91R. At paragraph 36 of that case, it was accepted by counsel for the Minister in the Full Court that 91R(2) did not implicitly limit the scope of “serious harm”. Indeed, counsel at that time in the Full Court expressly disavowed that 91R(2) did in any way limit what had flowed from - - -

CALLINAN J: Did you say there was an explanatory memorandum referred to?

MR CHARMAN: Those are contained firstly at paragraph 55. The point I make in relation to that, your Honour, is that 55 and the paragraphs thereafter reflect the fact that there are concerns that 91R would limit the nature of “serious harm”, hence the further memorandum at paragraph 59. Indeed, paragraph 57 of that judgment, we say it is clear from what the Full Court has to say there that – this is about halfway down paragraph 57:

it was not intended, by those examples, to narrow the scope of “harm” whether “serious” or not, as that concept had been developed by the High Court. See generally Chan Yee Kin . . . Applicant A –

and other cases referred to there. So we say, your Honour, that it is clear from what flows from that decision and the memorandum there that the intent in 91R(2) was clearly not intended to narrow the scope of “serious harm” as discussed in Chan and Applicant A and Ibrahim.

CALLINAN J: I do not know about that. If you look at paragraph 57:

We were told by Mr Lloyd, from the bar table, that the changes to s 91R(2) were brought about by a concern on the part of some members of Parliament that the Bill, in its original form, might be thought to “raise the bar” . . . That may indeed have been the intention of the Government . . . However, that intention was not ultimately realised.

I do not know whether that is right or not. If you look at paragraph 59 to which you have referred, it says:

The purpose of this amendment –

this is the revised memorandum apparently –

is to clarify that it provides a non-exhaustive list of what is “serious harm” . . . It also makes it clear that proposed paragraphs 91R(2)(a) to 91R(2)(f) do not prevent other things from amounting to “serious harm”.

The purpose of the revised memorandum seems to be to make it clear that the list is a non-exhaustive list, and no more than that. I do not know whether it tended to narrow it or not. It certainly clarifies it.

MR CHARMAN: We say what flowed from that, your Honour, is that it certainly clarifies that it is not intended to limit what flowed from - - -

CALLINAN J: This is a Full Federal Court decision, Justices Kiefel, Weinberg and Edmonds.

MR CHARMAN: Yes, your Honour, and we say that clearly indicates that the memorandum and, indeed, the Full Court’s views at paragraph 57 reflect what we have to say about what we say is the error in his Honour’s judgment, that implicitly by dealing with it in the manner that I have - - -

GUMMOW J: Do you know if there is any application for special leave in that judgment of the Full Court in May this year?

MR CHARMAN: Your Honour, I have corresponded with counsel for the appellants in that matter. They have not received instructions at this stage. That was a matter of a few days ago and I am unsure about the current position. If this Court was to grant special leave in this matter, he indicated it may well be that they would seek to join that matter to this matter, but I certainly could not give an undertaking that would happen.

GUMMOW J: Thank you.

MR CHARMAN: Your Honours, if I could briefly take you to the decision of the Tribunal. The Tribunal decision commences at page 2 of the application book. I will only take you to these matters very briefly. At page 3 at 20, the Tribunal indicates that:

Sections 91R and 91S of the Act now qualify some aspects of Article 1A(2) –

and that is clearly correct. At 30, however, it deals with this particular clause and it says:

The expression “serious harm” includes, for example –

and it lists the examples, but it does not deal with the fact that it is not intended to limit the definition of “serious harm” under 91R(1)(b). Now, in itself those are merely words and perhaps a - - -

CALLINAN J: But his Honour the Federal Court judge does not say that. All he says is that you look at the instances for guidance. That is what his Honour is saying. That is precisely, it seems to me, what the Act intended when it used the word “instances”.

MR CHARMAN: With respect, your Honour, there is nothing in the Act that says – and in fact the express words of the Act says “Without limiting”. So regardless of whether it says “instances” or not - - -

CALLINAN J: They would not be instances if it were limited; it would be an exhaustive catalogue.

MR CHARMAN: Exactly, your Honour, and we say that as a result of that there are matters outside of that list which are capable of being “serious harm” and there is an accumulation of other matters which otherwise would not be “serious harm” which may have an accumulative effect of being “serious harm”. His Honour, in dealing with the matter in the manner that he did, has implicitly limited the definition of “serious harm”. With respect, that is clear at page 65 where he makes it clear that he considers the dicta which fell from Chan and Applicant A:

cannot be read as now alone setting the applicable standard.

It is clear from that he accepts that the standard has changed, and there is no suggestion it has widened and, with the greatest respect, can only suggest that the standard has narrowed, and we say that is contrary to 91R(2), the express words therein, and that there is the decision of the Full Federal Court of NBFP, where the Minister, the respondent, conceded in that matter that there was no change to the definition of “serious harm”, contrary to what his Honour had to say in this matter.

CALLINAN J: The concession made there does not bind us.

MR CHARMAN: I accept that, your Honour. I simply indicate what took place there as a divergence of views as to the importance of 91R(2) and what amounts to “serious harm” in 91R(1)(b) when compared to those matters which are listed under 91R(2). Effectively, that is the special leave point, on our submission, that what can amount to “serious harm” under 91R(1)(b) which does not fall within section 91R(2).

Your Honours, I will not take you to all the particular instances, but in this case it was accepted by the Tribunal that - - -

GUMMOW J: Just a minute, Mr Charman. For the convenience of counsels who are in Court in matters 9 and 10, we can indicate we will not be taking them before 2.00 pm. Yes, Mr Charman.

MR CHARMAN: Thank you, your Honour. Your Honour, at pages 26 and 29 of the application book, it is clear that the Tribunal accepted that there are limits upon employment in the government; the applicant could not touch food in public; could not provide religious instruction, Sabean Mandaeans generally; there are higher education limits; reduced rights before the law; the police did not discriminate but the courts did; their religious premises were confiscated.

Now, whilst each.....one of those may not amount to “serious harm” under the list in 91R(2), we say the cumulative effect of that is to amount to serious harm under 91R(1)(b). In dealing with it in the manner that it did, the Tribunal and his Honour, by accepting the Tribunal’s logic, effectively narrowed the scope of “serious harm” for the reasons which I have indicated.

Your Honours, if I can just take you to one specific example which we say indicates a narrow manner in which the Tribunal dealt with the notion of “serious harm”. It is at page 34 of the application book. It starts at about line 11. The applicant was in the army; he was pressured by a senior officer to convert to Islam; he said he did not intend to; he was assaulted and locked up. Now, we accept that there was a passage of time and, therefore, the well-founded fear may not continue and that was a reason for considering that that was not the basis of persecution, but nevertheless at line 35 the Tribunal went on to find that:

In my view, the attempt made by Mr Chuhaili Sobbi’s superior officer to influence him to change his religion . . . falls far short of treatment which could be categorised as persecution.

CALLINAN J: I have some difficulty accepting that this particular incident occurred, at line 25 on page 34.

MR CHARMAN: But on line 32:

However, for present purposes I am prepared to accept that the incident happened –

CALLINAN J: “[F]or present purposes”.

MR CHARMAN: Yes, which was to determine whether in fact this man meets the criteria under the Migration Act. So we say whilst there was other reasons for disallowing that claim as a basis of persecution, that in itself indicates the erroneous manner in which the Tribunal dealt with what amounts to “serious harm” under the Act.

GUMMOW J: Thank you.

MR CHARMAN: If the Court pleases.

GUMMOW J: We do not need to call on you, Mr Roder.

We are not satisfied that the Federal Court construed section 91R of the Migration Act 1958 (Cth) in the manner of which the applicant complains. Nor was there error in the application of section 91R to the particular facts of the case.

Accordingly, special leave is refused with costs.

AT 1.14 PM THE MATTER WAS CONCLUDED