[2015] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
		Sydney			No S255 of 2014

B e t w e e n -

SZSWB

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2015, AT 12.03 PM

Copyright in the High Court of Australia

MR J.B. KING:   May it please the Court, I appear for the applicant.  (instructed by Fragomen)

MR G.T. JOHNSON, SC:   May it please your Honours, I appear with my learned friend, MR P.M. KNOWLES, for the first respondent.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Yes, Mr King.

MR KING:   May it please the Court, this application raises two interrelated issues concerning the applicant’s claim for protection.  The first issue, which is put as a visitation point, concerns whether the Full Court erred in not addressing the basis upon which the applicant succeeded before the primary judge.  The second issue, which is a question of principle, is whether there is a valid claim for complementary protection under section 36 of the Migration Act where the applicant has been forced to modify his conduct to avoid a real risk of significant harm.

	Beginning with the first issue, I propose to identify the basis upon which the applicant succeeded before the primary judge and then go to the Full Court’s judgment.  Your Honours will be aware that the applicant claimed he had left Iran because of death threats from a business competitor resulting in him being the victim of a hit and run incident by someone driving a utility vehicle.  When the applicant attempted to recommence his business he received further threats and he left the country.  

	The primary judge found that the applicant had made that claim and the applicant had modified his conduct because of those threats.  Those findings can be seen at page 64 of the application book, paragraph 52, in particular the last sentence of paragraph 52:

the applicant’s claims and evidence indicated that he had modified his conduct (in not being involved in the . . . business after September 2010), and this was caused by the harm that he had suffered.  In short, he had been scared out of the business.

On the opposite page at paragraph 56 in the centre of that paragraph the primary judge said that:

the evidence before the Tribunal strongly indicated that the applicant’s modification of his conduct (in ceasing to be in the . . . business) was influenced by the threat of harm he faced.

At the bottom of that page in paragraph 57, halfway through that paragraph, his Honour noted that:

the applicant did claim that he received threats when he attempted to re‑enter the . . . market after 2010.  It is this evidence that forms the basis for the applicant’s submission in this Court that the applicant modified his conduct by refraining from trading -

The Full Court did not disturb those findings.  The basis upon which the primary judge granted relief begins on page 64 at paragraph 53 and in the final sentence of that paragraph your Honours will see that there is a statement of principle from this Court’s decision in S395 that:

“to determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider the issue properly”.

That was the submission made by the applicant and that principle was adopted and applied by the primary judge at page 69, paragraph 68.  At the beginning of paragraph 68 his Honour said:

the Tribunal’s error was a failure to determine whether the applicant’s modified conduct was influenced by the threat of harm he faced . . . before finding that the applicant did not face a real risk of significant harm.

At the top of that page your Honours will also see his Honour’s statement that:

it was clear that the applicant claimed that he did not abandon . . . selling by his free choice.  He was scared out of the trade by the physical harm he suffered and the subsequent threat of further harm.

None of the findings that led to those conclusions were disturbed by the Full Court, and I will turn to the Full Court’s reasons now.  The approach taken by the Full Court is best revealed by the division of issues at paragraph 4 on page 83 of the application book.  Paragraph 4 dichotomises the issues before the Full Court as the Full Court saw them.  In paragraph (a) the issue that is presented as potentially being dispositive of the Minister’s appeal was:

did the visa applicant make a claim for complementary protection based not only on past disputes which he had with a rival distributor . . . but also on an intention to resume his . . . business if he were returned to Iran?

In my submission, that issue was not dispositive of the issues raised in paragraph (b).  It had never been the applicant’s case that he would resume his business if he were returned to Iran.  The primary judge had found, and the applicant’s case was, that he had modified his conduct, that is, suspended his business operations because of the real risk of significant harm and that he would be too afraid to recommence his business if he were returned.

GAGELER J:   Where do we find that, that he would be too afraid to recommence his business if he were to return?

MR KING:   Page 60 of the application book at paragraph 39.  Your Honours will see initially a statement that is consistent with what the Full Court said:

the applicant never made any claim that he would . . . again resume selling –

if returned –

Rather, his evidence supported the proposition that he would be too afraid to do so.

That was the basis upon which the primary judge granted relief to the applicant and it was that proposition that needed to be engaged with by the Full Court, in my respectful submission.  To make good the proposition that the first issue stated by the Full Court in paragraph 4(a) was not dispositive of the appeal, could I take your Honours to page 92 of the application book at paragraph 26 where the Minister has outlined the submissions that the Minister made on the appeal, that there is a correct statement in the first sentence of that paragraph that the Minister’s challenge was to:

the primary judge’s finding that the Tribunal had erred because it failed to consider whether the visa applicant’s decision to cease trading . . . was influenced by the threat of harm –

In paragraph (c), the third submission put by the Minister is recorded, and that is that:

in any event, the issue of whether the visa applicant could or should modify his behaviour did not arise –

That particular expression “could or should modify” has importance here because it reveals what went wrong.  These words infected the balance of the Full Court’s approach.  The issue was never whether the applicant could or should modify his behaviour in the future.  His case was that he had already done so and would be too afraid to revert in the future.  At paragraph 28 on the opposite page in the middle of that paragraph the Full Court has taken that submission made by the Minister beginning with the words “One of the identified reasons” and adopted that language of “could or should modify”, noting that that issue:

did not arise because the Tribunal made no relevant finding on that matter and indeed, the visa applicant did not express any desire to resume –

his business, no doubt because he was too afraid to do so, as the primary judge found.  There was also ‑ ‑ ‑

GAGELER J:   I am sorry.  You have taken us to that one sentence at the top of page 61.  Is there an actual Tribunal finding to that effect?

MR KING:   No, the Tribunal did not approach the applicant’s claims in this way.  The effect of the primary judge’s decision was that the claims that were made by the Tribunal were to this effect and the Tribunal erred in not considering the claims that were made.  The Tribunal’s reasons are at page 2 of the book.  There is a large paragraph 7 there which purports to be a summary of the applicant’s claims before the Tribunal.  In the middle of that paragraph, the Tribunal has said:

Whilst the Tribunal accepts that there may have been a distribution dispute –

So it appears to have made a finding that there was such a dispute as was claimed by the applicant –

the applicant failed to explain at hearing how that related to his refugee claims . . . Even if the Tribunal accepts that the applicant has been involved in some sort of territorial dispute . . . which lead to his being run over . . . the rival network was controlled by Sepah, the Tribunal is not satisfied that the applicant described at hearing anything more than a nonrelated convention turf war.

That was the subject of a separate ground in the applicant’s notice of contention in the Full Court, but the ultimate findings are that because the applicant did not say anything had happened to him since 2010 and because he was not selling when he left, the Tribunal was not satisfied there would be a risk of harm when he returned.

	The primary judge looked more closely at the claims that the applicant had made to the Tribunal and observed that it was not sufficient for the Tribunal merely to look at the fact that he was not in business when he left and that nothing had happened to him since 2010, because both of those things were referable to the significant harm he had experienced in being run over in 2010.  So the failure of the Tribunal to ask why the applicant had ceased to be in business and left the country involved jurisdictional error.  That was the basis upon which the primary judge granted relief.

	The Full Court at page 93, paragraph 28, when it began its consideration, as I said, looked at the submission of the Minister about whether the visa applicant could or should modify his behaviour in the future and recorded at the end of that paragraph 28 the applicant’s submission that:

there was no necessity for him to have expressly asserted that he would resume –

his business, recalling again the basis of the claim that he had made before the Tribunal, being that he had been too afraid to do so.  What those words did – “could or should modify his behaviour” – they led the Full Court to engage in a review of the whole of the evidence and claims before the Tribunal looking for, in search of, a claim that he would resume his business if returned to Iran.  

	They did not engage with the proposition found by the primary judge that the applicant’s claim was he would be too afraid to resume his business if returned.  In my submission, it is entirely unsurprising that there was no claim to be found that he would engage in his business when he returned when that was inconsistent with the claims that he was putting to the Tribunal that he would be too afraid to do so.  

	The conclusions ultimately reached by the Full Court appear on page 97, paragraph 42, and there are three points that I want to make about these conclusions.  The first sentence of paragraph 42 is that:

The submissions with which the Tribunal was dealing did not involve the proposition that the visa applicant would pursue the business . . . if returned to Iran.

That is a correct statement and that was also found by the primary judge.  The concluding sentence of that paragraph that:

The Tribunal did not find as a fact that the visa applicant would or would not return to the –

business if returned was also correct.  But if anything, rather than supporting the submissions that the Minister was putting in that case, it revealed a separate jurisdictional error by the Tribunal suggesting that it misunderstood the applicant’s claims relating to the threats of significant harm arising from his business in not even finding whether he would or would not resume his business if returned.  In my submission, the task of the Tribunal based on the claims that the applicant had made about a risk of significant harm arising from his business, required it to consider whether he would or would not resume his business on his return.

GAGELER J:   I am having difficulty with that submission.  The last few words of the sentence you have just taken us to in paragraph 42 are “and no such proposition was put”, that is, no such proposition was put to the Tribunal.

MR KING:   If the proposition that is there referred to is the proposition that he would return to the business, that is true, and he did not put that proposition to the Tribunal, and that was consistent with the decision of the primary judge.  If the proposition is that he would not return to the business, in my submission that does not engage with the statement that he would be too afraid to return to the business.  It does not go further and investigate why he would not return to the business and it was the question of why that the primary judge saw as significant when it came to the Tribunal performing its review.  So that the Full Court’s statement that the proposition he would not return to the business was not put does not, in my submission, answer the questions that were presented to it.

GAGELER J:   Can you point in the reasons of the Tribunal to the claim you say was made to the effect that the applicant feared recommencing the business if he were to be returned to Iran because of the past conduct?  Visitation cases are normally glaring errors.  This is a very messy one, I am afraid.

MR KING:   It is.  That best appears from the Tribunal’s summary of the evidence at pages 28 and 29.  There are choice sentences in the interests of time I will take your Honours to without meaning to unfairly cherry pick.  On page 28, paragraph 46, the second sentence:

The Tribunal put to him that he had talked about one incident in 2010 . . . He agreed that –

the person –

was to blame for him being run over in –

that year –

He stated just after he was run over –

he was called and told to –

get out of this business.

At the top of page 29 he explained that:

he had been bedridden for 12 months but that he then went back to selling . . . He stated the best time of his business was before the accident.  The Tribunal put to him –

this proposition –

that it was not sure how this related to him being a refugee, that is as far as it understood this happened in 2010 –

and he was not contacted after that date and did not return to selling.  But there was an answer to that proposition by the applicant recorded in the next paragraph, which is that he did make contact – I beg your pardon – that he did receive contact with a warning to get out of the business and that the applicant tried to recommence his business.  In the middle of the paragraph:

He stated his plan was to continue his business and to reconnect . . . but that when people noticed he was getting closer to him they sent him warnings . . . He stated after the 12 months in which he was hospitalised he came out and did not sell . . . any more.  He stated they warned him to go away from the business and then he came to Australia.

It was all of that material that led the primary judge to find that the applicant had been scared out of the business and would be too afraid to recommence should he be returned.

GAGELER J:   That is what you say is a finding at the top of page 61, that the evidence supported a proposition?

MR KING:   The primary judge proceeded on the basis that that was the case so in my submission that should be read as a finding.

GAGELER J:   Does the Full Court address that as a finding?

MR KING:   No.  On page 97 in paragraph 43 towards the end of the Full Court’s judgment, in the middle of the paragraph the Full Court says:

We accept the submission on behalf of the Minister that the visa applicant did not state that he would recommence his . . . business if returned to Iran.

That is not controversial.  It said:

It may be accepted that the visa applicant had not in the past resumed his . . . business because of the threat of harm but that does not, in our opinion, show what the visa applicant would do if returned –

So, if anything, the Full Court appears to have been – although it did not really address the question one way or the other, it appears to have been willing to proceed on the basis that what the primary judge had said about being scared out of the business was in fact the case, but that in some way that did not lead to the relief granted by the primary judge being appropriate.  The only reason ultimately given was a sentence at the end of the paragraph that:

There were no asserted or established facts on which to found the claim.

If the claim there referred to was the claim that he would resume his business, that was not his case and that was not the approach that the primary judge took, and if it was some other claim not identified then, in my submission, that was not the issue before the Full Court.

FRENCH CJ:   You had better go to your next point, I think.

MR KING:   That is a visitation point, your Honours.  The question of public importance is whether there is a valid claim for complementary protection under section 36 where the applicant has been forced to modify his conduct because of a real risk of significant harm.  Your Honours will appreciate that this depends to some extent on the findings made by the primary judge, albeit not disturbed by the Full Court, in my submission.  The Full Court held that the applicant did not have a claim for complementary protection that needed to be considered by the Tribunal because he did not claim he would continue to engage in the conduct that gave rise to the risk of significant harm when returned to Iran.  

	Can I take your Honours to the bundle of legislative provisions, to section 36?  Your Honours are aware that the complementary protection criterion itself is in paragraph (2)(aa).  Importantly, what informs the construction of that paragraph are the exceptions in 36(2B).  The premise for the two exceptions in paragraphs (a) and (b) of (2B) is that there can be a real risk satisfying the complementary protection criterion, notwithstanding that it may be possible to take steps to avoid the risk.

	That is, paragraph (a), the possibility of relocation assumes that there might otherwise be a real risk if the person does not reasonably relocate and paragraph (b), obtaining protection from an authority of the State.  Both of those paragraphs, in my submission, necessarily inform the construction of the criterion in (2)(aa).  The question in a case where someone has – I beg your pardon – in a case where someone claims to have modified his conduct because of a real risk of significant harm, the question is that presented by those two subparagraphs of (2B), whether it is reasonable to relocate; whether the person could obtain protection from a State authority.

	The Full Court’s decision, which may have important implications for complementary protection claims generally, gives little or no attention to the effect of these paragraphs in the construction of (2)(aa) and the effect of the decision is that, for example, where a girl who was betrothed from birth to a distant relative and comes to realise that she does not want to go through with the marriage, nevertheless has a choice whether to do so, with one course attracting a risk of significant harm from others, and one not, but honestly says to the Tribunal that, “If I am returned I don’t want to be exposed to the risk of significant harm so I will go through the marriage”, the effect of the Full Court’s decision is that, unless such a claim is made, that person would have no claim for protection under this criterion.  May it please the Court, those are my submissions.

FRENCH CJ:   Yes, thank you.  We will not need to trouble you, Mr Johnson.

	No ground is shown warranting the grant of special leave on the basis that the interests of the administration of justice require consideration of the judgment by this Court.  The case is not otherwise a suitable vehicle to raise the point of principle for which the applicant contends.  Special leave will be refused with costs.

	The Court will now adjourn to reconstitute.

AT 12.26 PM THE MATTER WAS CONCLUDED