SZVSE & Ors v Minister for Immigration and Border Protection & Anor [2018] HCATrans 96 (18 May 2018)

Last Updated: 23 May 2018

[2018] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S310 of 2017

B e t w e e n -

SZVSE

First Applicant

SZVSF

Second Applicant

SZVSG

Third Applicant

SZVSH

Fourth Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 MAY 2018, AT 2.22 PM

Copyright in the High Court of Australia

____________________

MR D.R. TAYLOR: May it please the Court, I appear for the applicants. (instructed by Sydney West Legal)

MR G.J. JOHNSON: If the Court pleases, I appear for the first respondent. (instructed by the Australian Government Solicitor (Immigration))

GAGELER J: Yes, Mr Taylor.

MR TAYLOR: Just one thing this morning, I did prepare some extracts of relevant DFAT country information concerning the treatment of failed asylum seekers in China, just a one-paragraph extract, and also an extract from the Refugee Review Tribunal 2007 paper, one of several, relating to failed asylum seekers and their treatment upon return to China. I do have copies if you need me to - - -

GAGELER J: Mr Taylor, you will have to tell me two things. One, was that material before Justice Pagone?

MR TAYLOR: No, your Honour.

GAGELER J: I do not think I need to ask you the second question. We cannot receive it.

MR TAYLOR: Yes. Some of it does post – well, it is December 2017 DFAT. Yes, okay, so thank you for hearing this matter, your Honours. If I may simply start, the appeal does not argue with the findings of the case or the merits – the findings in relation to merits, although I have in the amended appeal noted that there was limited reference to the political statements of the applicants when credibility was being determined.

Moving on from that, the fundamental question that the applicants are asking the Court to look at is that the matter was proceeded upon at all stages upon the basis of voluntary return and there was not an actual assessment under section 36(2)(aa) as to what would happen if the applicants were removed to China.

EDELMAN J: Mr Taylor, I think there are two possible obstacles to that submission. One is that it does not appear to have been raised below and the second one is if one looks at, for example, paragraph 64 of the Tribunal’s reasoning on application book 28, consistently with the rest of the Tribunal’s judgment, it seems to be focusing closely upon involuntary removal, that the purpose of the application is to resist removal.

MR TAYLOR: So, if we go to paragraph 63, the first line is:

I have rejected the applicants’ claims that they will be of adverse interest to the Chinese authorities upon their return -

Now, there is no indication there that that is taking the applicants as the object of being returned, rather as the subjects who choose to return. It is not differentiated in the statement but I would submit that the reasoning of the judgment is couched in terms of being determined upon them being the subjects who make an active choice to return and do so voluntarily without having to go through a removalist process.

GAGELER J: Was it ever put to the Tribunal that there was a fear of persecution on return to China arising by reason of being forcibly removed to China? Did that ever form part of the claim made to the Tribunal?

MR TAYLOR: No, your Honour, the issues were not raised. They were not dealt with, although the second applicant said that they cannot imagine what risks they faced when they returned and they also raised a question of the data breach which I submit - - -

GAGELER J: This is another point, is it?

MR TAYLOR: No, your Honour, I submit that it goes to the same point because they were concerned about their claims coming to the attention of the Chinese authorities. That matter was, if you like, solidly stopped by the Tribunal who indicated that they were not in detention, so, therefore, their details had not come to the attention of the Chinese authorities.

GAGELER J: So, the point being they were not affected by the data breach. Is that right?

MR TAYLOR: That is right. But we say, your Honour, that nonetheless, the removals process inevitably involves coming into contact with the Chinese authorities and they will be aware that the applicants have claimed for a protection and they will definitely inquire into that.

GAGELER J: Let me just understand. The claim that you seek to advance before the High Court is not a claim that was advanced by or on behalf of your client before the Tribunal?

MR TAYLOR: If I may, your Honour, that is correct but it also relates to a claim – claims which were identified in the decision that were elicited from the delegate from the applicants. They were asked for their political views about the Chinese Government. They responded in kind in what might be termed as extraordinary kind of bold statements against the government of China, looking forward to its downfall, hating the Chinese Communist Party and these were, to some extent, reproduced within the Tribunal decision. If I may take you to page 9 of the application book at about line 14, this is:

While China is a great country [he] hates the Chinese government and the Chinese Communist Party (CCP).

If I may also take you to the relevant – I think it is paragraph 60 of the judgment – 61, line 2 – line 2 says:

I do not accept that [he] would face any harm if he returned to China because of his political opinion (real or perceived).

In other words, the Tribunal is acknowledging that the applicant has raised a political opinion through the claims process, expressed a political opinion but it has not actually dealt with that as a claim. If we come down to the – a couple of sentences later:

I do not accept that the applicants have a well-founded fear of being persecuted on account of their political opinion or for any other reason if they return to the PRC now or in the reasonably foreseeable future.

Then, if we come down to paragraph 62, it says:

I do not accept that the applicants have any profile with the Chinese authorities other than that of ordinary Chinese citizens.

The next sentence is:

I do not accept the applicants have ever, or are now, of adverse interest to the Chinese authorities –

Now, section 36(2)(aa) requires a future-looking test and there is no indication here of actually applying a future-looking test. Indeed, section 36(2B)(c) refers to the requirement for an assessment of protection, complementary protection, that it not be a risk of harm which is common to ordinary people.

GAGELER J: Mr Taylor, the basic problem is that we are being asked for special leave to appeal from the decision of Justice Pagone.

MR TAYLOR: Yes, your Honour.

GAGELER J: None of your arguments appear in any way to be directed to the existence of error in his Honour’s judgment.

MR TAYLOR: Yes, your Honour. The basic point – the legislative point which we say raises an error is that 36(2)(aa) is a mandatory consideration for facts - reasonably arising on the facts of the application. If we can – then applying that to the particular case, that means that the Tribunal had a duty to consider whether there would be any risk of harm on removal, including involuntary removal and we say that that should have been understood by the Federal Circuit Court and the Federal Court - I know that that is a large proposition to make but if I may just - - -

GAGELER J: Well, I think we understand that point. Is there anything more you can say?

MR TAYLOR: Definitely, your Honour. So, what I would say is that the Federal Circuit Court and the Federal Court appeals were launched on the basis that the applicant had spoken about returning to China and that he did not have a concern about returning to China. I think that fundamentally that error has flown through the Tribunal decision that he did not have a concern about returning to China which was actually, to some extent, there was some error involved in the Tribunal statements. What I think has happened, your Honour, is that the - - -

GAGELER J: What statement of the Tribunal was in error?

MR TAYLOR: There was a statement of the Tribunal which said that he had no concern – when initially asked whether he had any concerns about returning to China so shortly after being detained the first appellant said no.

GAGELER J: Of course, that was the point that was dealt with at some length in the judgments below. We understand that. We have read them.

MR TAYLOR: Of course. Our point is that apart from using up – I mean, being the obvious error which is, sort of, taken up the opportunity for – taken the attention of all persons involved to that sharp point - we have kind of like missed the next level up which is whether the Tribunal fell into error by assuming that the applicant had no real fear of returning to China rather than being removed to China. I submit, your Honour, that that is what has actually happened. If we go to Justice Pagone’s decision – if we can go to page 78 and it is lines 13 to 14 and it says:

The first appellant claimed to fear harm from the Chinese authorities if he were to return to China.

Now, that is the active case and it is only talking about the first appellant. It does not actually – I mean, I accept that the judgment deals with the claims of all the appellants but it is talking about the active case if the applicant were to return to China. It is not at all recognising that this error has been carried through, the error of the Tribunal in only considering voluntary self-return and has not actually addressed the mandatory criteria of section 36(2)(aa) that the Tribunal must consider whether there would be any risk of harm if he were returned – if the applicants were returned to their country of origin.

We submit, your Honour, that is a mandatory consideration that the Tribunal must address. We submit that it has only been – the actual fact of being returned as an object – the object of the sentence as opposed to – that is to say if they were returned those words are only used in actually reciting the formula for rejection – reciting the statute in saying that it is considered that it does not apply if they were returned.

But the actual reasoning by which that finding is arrived at reveals that there was an erroneous understanding that the Tribunal was considering section 36(2)(aa) on the basis of the applicant being the subject of the return – actively returning themselves and not going through a removalist process. So, we submit, your Honour, that actually the delegate has not considered the actual removal process.

GAGELER J: I think we understand the Tribunal. Thank you.

MR TAYLOR: There are some other matters which we say, your Honour, do go to the merits of why special leave should be granted.

GAGELER J: State them, please.

MR TAYLOR: Thank you, your Honour. The judgment initially contained enough detail that it would be capable of being, we say – let me

put it another way, the Tribunal was under a duty to apply the future-looking test and actually the tests which were available on the PAM 3 website at the time – appeared from the stack in retrospect, appear to have had the wrong test on them so we do not say they have been unnecessarily used in a decision but they were indicating that at that time - the PAM 3 guidelines were indicating that the test was whether or not it was more probable than not that the person would be harmed if they were returned for complementary - and I just note that.

Also, we say, your Honour, that the Tribunal in the future-looking test may have considered that the applicants might go through an appeal process and that.....could be published and, indeed, they were published, the names of the applicants.

GAGELER J: Is there anything more?

MR TAYLOR: I would ask, your Honour, that I did mention the name of an applicant, if the transcript could please remove that name.

GAGELER J: Very well, that correction will be made. Thank you, Mr Taylor. Mr Johnson, we do not need to hear from you, thank you.

The oral submissions made on behalf of the applicant by Mr Taylor make clear that the application for special leave to appeal is sought to be made on a ground which was not pursued or explored in the decisions of the courts below. No reason has been advanced for doubting the correctness of the decision of Justice Pagone. In those circumstances, the application for special leave to appeal is dismissed.

Do you seek costs?

MR JOHNSON: I do, your Honour, against the adult applicants, if I can put it that way.

GAGELER J: It is dismissed with costs against the first and second applicants.

The Court will now adjourn to 10.15 am on Wednesday, 13 June in Canberra.

AT 2.39 PM THE MATTER WAS CONCLUDED