Abebe, Ex Parte- Re Min for Immig & Multicultural Affairs

[1997] HCATrans 396

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney  No S139 of 1997

B e t w e e n -

In the matter of -

An application for Writs of Certiorari, Prohibition, Mandamus and Habeas Corpus and injunctions against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

LUKE HARDY (constituting the Refugee Review Tribunal)

Second Respondent

Ex parte -

SENIET ABEBE

Prosecutor

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 24 DECEMBER 1997, AT 9.34 AM

Copyright in the High Court of Australia

MR J.M. GERSTEN:   May it please the Court, I appear on behalf of the prosecutrix.  (instructed by Alex Lee)

MS R.E. CHEETHAM:   I seek leave to appear for both the first and second respondents, your Honour.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Thank you very much.  I think there is a misdescription of the first respondent.  I notice that the letterhead of the notice to the prosecutor is described as the Department of Immigration and Ethnic Affairs.  Is that the correct title of the department or is it Multicultural Affairs?

MS CHEETHAM:   It will be Multicultural Affairs, your Honour, yes.

HIS HONOUR:   It is old letterhead, is it?

MS CHEETHAM:   More than likely, your Honour, yes.

HIS HONOUR:   Very well.

MS CHEETHAM:   Might I just mention also that the second respondent submits to any order of the Court save as to costs.

HIS HONOUR:   Yes, thank you.  The second respondent, the Tribunal, submits to any order of the Court save as to costs, and he is excused.  Where is the prosecutor at the moment?  Is she in custody?

MR GERSTEN:   In immigration detention, your Honour.

HIS HONOUR:   Yes, all right.  Well, what do you want to say about this?  What is your actual application today, Mr Gersten?

MR GERSTEN:   I believe that the Registrar has handed up our draft rule nisi to the Court.  I would, before I begin, express the appreciation of the prosecutrix, myself and my instructing solicitor for the Court - - -

HIS HONOUR:   Let us call her “the prosecutor” to avoid any gender‑specific language.  I think that would be the practice of the Court now.

MR GERSTEN:   Indeed, your Honour, thank you.  I would express the appreciation of the prosecutor, myself and Mr Lee for convening on Christmas Eve.  It was most gracious of the Court to do so.

HIS HONOUR:   It is just another day as far as I am concerned.

MR GERSTEN:   Thank you, Justice Kirby.

HIS HONOUR:   Let me help you to put on the record the matters that you are going to place before the Court.  The materials that have been put before me are the following:  an affidavit of Alex Lee, solicitor, which is sworn 22 December 1997.  Do you read that?

MR GERSTEN:   I do.

HIS HONOUR:   Have you seen that, Ms Cheetham?

MS CHEETHAM:   I have, your Honour, yes.

HIS HONOUR:   Do you have any objection to the Court receiving that and reading that affidavit?

MS CHEETHAM:   There may be some objections to specific parts of the affidavit, your Honour, but depending on what my friend has to say there is no objection to admitting it.

HIS HONOUR:   Very well.  I will protect you in relation to any objection that you may later raise as to the relevancy of the affidavit, but the Court reads the affidavit described as the first affidavit of Alex Lee which is sworn 22 December 1997.  There is a second affidavit which is sworn 23 December 1997 deposing to the urgency of the hearing of the cause and a third affidavit also as to urgency dated 23 December 1997.  Do you read both of those affidavits?

MR GERSTEN:   I read the first urgency; I have not read the second.  I have been instructed as to its contents but I have not specifically read it, your Honour.

HIS HONOUR:   I see.  So, you do not read the second but you read the third?

MR GERSTEN:   I read the second, I did not read the third.

HIS HONOUR:   I see, very well.  I will just disregard the third affidavit and you read the second.  Is there any objection or are you content that the same course be adopted in respect to the second affidavit, Ms Cheetham?

MS CHEETHAM:   I have not seen either of those two affidavits, your Honour.

HIS HONOUR:   Yes, very well.  I will read therefore both - you read the two affidavits and you can take it that I have looked at both of those.  Is there any other evidence that you wish to place before the Court?

MR GERSTEN:   Yes, your Honour.  They are exhibits to Alex Lee, 1 through 4.  I take it the Court has had regard to the four exhibits?

HIS HONOUR:   I think they may be attached to the document that I have.  There is attached to that document the decision and reasons for decision of the Tribunal dated 3 September 1997 and also an immigration inspector’s report dated 6 March 1997 in respect of the applicant.  They are the only two documents that are annexed to the first affidavit.

MR GERSTEN:   May it please the Court, does the Court have a copy of the prosecutor’s pro se handwritten application?  Is that before the Court?

HIS HONOUR:   A copy of that document is an annexure to the first affidavit.  It is annexure AL3.

MR GERSTEN:   May I respectfully inquire as to whether or not the Court has before it the amended application for a review?

HIS HONOUR:   Yes, I have that.  That is AL4 to the same affidavit.

MR GERSTEN:   I believe that would be the evidence that would be tendered.

HIS HONOUR:   Now, may I just ask, Ms Cheetham, whether you have instructions at this stage as to what is the intention of the Minister in relation to the removal of the applicant from Australia.  There is a notice which was also in the file that was handed to me and that is the only other remaining document which has not been identified.  This is the document to which I referred dated 16 December 1997, signed by Peter Davis, executive officer, compliance, Rockdale, on behalf of the Department giving notice of the fact that arrangements for the removal from Australia of the applicant are being made.  I think in the second affidavit there is a reference to the fact that the applicant is liable for immediate prosecution, and somewhere I think I read the suggestion that she will, unless the Minister is restrained, be removed today.

MS CHEETHAM:   Not having seen either of those two documents, your Honour, my instructions are that arrangements have been made.  There is a distinct possibility that there will be a seat available on the carrier that brought her here tomorrow at 7 pm to take her away, to take her back to ‑ ‑ ‑

HIS HONOUR:   To take her where?

MS CHEETHAM:   Back to Johannesburg, your Honour, which was her port of embarkation.

HIS HONOUR:   I will show you this letter which - I do not know how this came into the file but in any case it is the letter of 16 December 1997 from Mr Davis, compliance officer of the Department of Immigration and Ethnic Affairs.

MS CHEETHAM:   Your Honour, I have no quarrel with that.

HIS HONOUR:   If the applicant were removed from Australia, then the process which is before the Court would be effectively brought to a close and she would not have the opportunity of having the matters which she wishes to place before the Court considered by the Court. 

MS CHEETHAM:   That is correct, your Honour.

HIS HONOUR:   Is there any reason why that course should be adopted, why a person in this country should be denied the access to the Court which she has invoked?

MS CHEETHAM:   Your Honour, my instructions this morning are to seek your Honour to dismiss this matter, the reason being that there is nothing raised in this matter that has not already been dealt with by his Honour Justice Davies at first instance.

HIS HONOUR:   That is not quite right, is it, because Justice Davies specifically held that he could not look at the issues which were raised by reference to those paragraphs of the Migration Act whereby the jurisdiction of the Federal Court has been excluded?

MS CHEETHAM:   That is correct, your Honour, and I would say that the reason why this Court should nevertheless dismiss the matter is that those grounds that were raised and were not permitted to be pressed before his Honour were grounds that rely upon the same factual matrix that are pressed in this Court and, indeed, the three findings of the RRT which Mr Lee mentions in his affidavit have been dealt with and were the subject of positive findings by his Honour.

HIS HONOUR:   May that not take a little time to discover that, and, in any case, be appropriate to be determined by a Full Court rather than by a single Justice?

MS CHEETHAM:   Your Honour, my second position, if you like, is that these proceedings should not have been brought in this Court.  If anything, there should have been an appeal against his Honour’s refusal to deal with those two grounds.

HIS HONOUR:   I take the applicant’s position to be that she accepts that by reason of the paragraphs of the Migration Act, the Federal Court does not have jurisdiction in the areas that are specified in paragraphs 18 and 19 of the affidavit, they being subsections (2) and (3) of section 476 of the Migration Act and that her only avenue of review on those grounds lies under the Constitution in this Court and that that is why she has brought the application in this Court.

MS CHEETHAM:   Indeed, your Honour, and my response to that is that ‑ ‑ ‑

HIS HONOUR:   That, of course, is an awkward thing from the point of view of this Court because of the press of its business and the national importance of most of the matters that come before it but, as I understand the Constitution, its jurisdiction cannot be excluded.

MS CHEETHAM:   Indeed, your Honour.

HIS HONOUR:   And has not been excluded by the Parliament and that, therefore, its jurisdiction being invoked, unless the matter is such that it can properly be peremptorily dismissed as being manifestly without any basis, the Court would just have to make arrangements as quickly as it could to deal with the matter which has been put before it by the application.

MS CHEETHAM:   Indeed, your Honour, and my instructions are that this matter is appropriate to be summarily dismissed today.

HIS HONOUR:   So, effectively, that is what the issue today will be, whether or not there is any colour of an arguable case in the application raising matters which are excluded from the jurisdiction of the Federal Court in the High Court of Australia, the applicant having to demonstrate that there is; you contending that there is not?  Is that correct?

MS CHEETHAM:   That is the respondent’s position, yes, your Honour.  The other difficulty is that I understand my friend is also raising today a challenge to the decision - for want of a better descriptor - to refuse the

applicant immigration clearance which was a decision of, I think, 7 March earlier this year.

HIS HONOUR:   That is the original decision when she presented at the barrier at Sydney airport?

MS CHEETHAM:   Without documentation, correct, your Honour.  In so far as that is raised today, we would also say that there is no case to answer in respect of that and that those claims ought also to be summarily dismissed today.

HIS HONOUR:   I do not know what that application is at this stage, so I will just have to let Mr Gersten elaborate that.  Do I understand it, therefore, that, unless restrained, it is the intention of the Minister to remove Ms Abebe from Australia tomorrow?

MS CHEETHAM:   In so far as it will be possible with the carrier, yes, and that looks as though it will be possible, yes, your Honour.

HIS HONOUR:   Very well.  Thank you very much.

MR GERSTEN:   May it please the Court, if I might direct, respectfully, the Court’s attention to the amended application for order of review Part II claims.  I believe that the particular prayers for relief in the draft order nisi are better articulated in the amended application for order of review.  I do not - - -

HIS HONOUR:   Do I have that?  All I have is a draft order nisi.  Is there some other document or what are you referring to?  Are you referring to the annexure 4 to the first affidavit of Mr Lee, the application for judicial review in the Federal Court?

MR GERSTEN:  Yes, annexure 4 of the first affidavit of Mr Lee.  The reason I raise that issue, respectfully, your Honour is that, quite frankly, I am not pleased with the degree of articulation of the prayer for relief in the draft order nisi.  So, essentially, as it was intended to track Part II of exhibit 4 of Mr Lee’s first affidavit, so if the Court wishes to direct its attention to that it is a clarification of the prayer for relief in the draft order nisi.  In the aeroplane up from Melbourne I was able to, on a laptop, prepare something.  If the Court wished to explore the avenue of standing down for five or ten minutes we can probably print out a more articulate draft rule nisi or, if the Court wishes, just to travel under rule nisi that we have now, and reference, Part II, which would be page 5 of the amended application for a review, as the Court wishes.

HIS HONOUR:   I think we should just press on with the matter and deal with it as best we can on the material that you have placed before the Court.  I have made plain the only matters that have been placed before the Court by the applicant.  Is there any other material that you place before me now?

MR GERSTEN:   No.

HIS HONOUR:   Is there any material that the respondent wishes to place before the Court so that we can close the evidence and deal with submissions separately?

MS CHEETHAM:   Your Honour, there are only two documents that I brought with me that may assist.  Does your Honour have a copy of the decision of Justice Davies at first instance?

HIS HONOUR:   Yes, I have that.

MS CHEETHAM:   Then I do not need - does my friend?

MR GERSTEN:   I have a copy.  I will not be travelling on that at all.

MS CHEETHAM:   We might be.  And I have the complete immigration inspector’s report, if that may give some further context to the situation when the woman - - -

HIS HONOUR:   Is there any objection to the Court receiving that?

MR GERSTEN:   Not at all.

HIS HONOUR:   Very well.  Hand that up.  I will mark that document exhibit R1.

EXHIBIT:              Exhibit R1.....Complete immigration inspector’s report   of 6 March 1997.

HIS HONOUR:   It seems to be the same document as is annexed to the affidavit of Mr Lee, I think.

MS CHEETHAM:   Your Honour, out of an excess of caution, the annexure that I have to the copy of the affidavit includes only page 2 of 3.

HIS HONOUR:   I see.

MS CHEETHAM:   If your Honour has pages 1 through to 3, then there is no need to tender that document.

HIS HONOUR:   Yes, very well.  How did your client board the plane to Australia?  She had a passport of some kind which I understand was flushed down the airline toilet.  Is that correct?

MR GERSTEN:   That is correct.

HIS HONOUR:   Was this a passport granted to her by Ethiopia or by South Africa or some other State?

MR GERSTEN:    No.  I am instructed that she purchased it on the underground market for passports in South Africa to be able to board the aeroplane to Australia.

HIS HONOUR:   There is mention here in the document, exhibit R1, which I have just been handed, the fact that this indicates she was probably granted refugee status in South Africa.  That is not correct?  She was not bearing a passport of South Africa which granted her refugee or any other status in that country?  The document on which she entered Australia was a false passport?

MR GERSTEN:   Your Honour, I could not accurately opine upon the Court’s suggestion.  There is conflicting evidence in the immigration file as to whether or not she had at some point in time been granted - I do not know if “refugee status” is the appropriate term, but some sort of temporary residency in South Africa.  That might be considered by some observers to be that of a temporary refugee.

HIS HONOUR:   But the long and short of it is she did not have a valid passport from South Africa?

MR GERSTEN:   Yes, to the best of my information and belief.

HIS HONOUR:   Yes, very well.  Well, normally, where a person has validly invoked the jurisdiction of this Court and claimed relief under constitutional writs, the Court would protect that person, at least until such time as the Court could come to a consideration of reaching a view - even a preliminary view - on the merits of the matter.  Therefore, to that extent, you start out a little in front but what, as I understand it, is contended is that when the facts of the matter that have been reviewed in the decision of the Tribunal which is before me are considered against those provisions of the Migration Act which are excluded from the jurisdiction of the Federal Court, that even if in this Court you were able to invoke those grounds of prerogative relief, the facts deposed to in the decision of the Tribunal make it clear enough that you would not be successful in this Court and on that basis the Court should not intervene.  So that is what you have to meet.

MR GERSTEN:   Yes, of course, your Honour.

HIS HONOUR:   It does seem as though you have a bit of a problem because your client has given three different versions of her background in her application for refugee status and she was found by the Tribunal, which had advantages which I do not have, to be a person who was not a credible witness.  They found that she was an unreliable witness.  It is not a surprising finding given the three versions she has given of her background on which she bases her claim for refugee status.

MR GERSTEN:   Is your Honour inviting me to respond to your Honour’s thoughts?  Then I take it we will be skipping over, for the time being, the decision of the immigration authorities at immigration clearance that, but for that decision, might have permitted her to take proceedings without having to be in detention.

HIS HONOUR:   Does that matter now that those proceedings have been conducted and your client has been given, as I understand it, two hearings before the Refugee Tribunal?  Is that correct?

MR GERSTEN:   Yes.  Your Honour, I suppose that I have created a chronology of relief and I would fit the events into the chronology of relief.  Now, if it is the Court’s wish to deal with the chronology of events followed by the relief, I am more than pleased to do so at the Court’s direction.  Is that what the Court is suggesting?

HIS HONOUR:   Well, you take your own course.

MR GERSTEN:   Okay.  Then I think it would be prudent on behalf of my client to deal with the initial relief sought and explain to the Court the position of my client. 

When my client arrived at Sydney airport a decision was made to place her in immigration detention.  If that decision was well grounded she should be in immigration detention and her Court proceedings proceed with her in that detained status.  If, on the other hand, that decision was incorrect she would have been in detention improperly, if not unlawfully, since March.  That cannot yet - - -

HIS HONOUR:   But can I define the issue a little more clearly as I see it.  The issue is not whether or not you might have some basis for complaining about various administrative steps that have been taken on the way.  The issue, in a nutshell, is whether this Court will give relief to prevent the virtually immediate removal of your client from Australia.  So that we are faced today with what is, in effect, an application for an injunction in order to defend the utility of the invocation of the jurisdiction of this Court.  We are not dealing with the whole gamut of the matters that would be placed before the Court if you got here except in so far as they are relevant to demonstrating that it is proper to provide interim relief to defend the utility of your application.  So that I think you will have to concentrate on the usual principles which govern the grant of an injunction and that, as I see it, is the urgent matter that is before me that is being returned with expedition today. 

MR GERSTEN:   Yes.

HIS HONOUR:   Do you have any dispute with that expression of the issue that is before the Court, Ms Cheetham?

MS CHEETHAM:   No, your Honour.

HIS HONOUR:   Very well.  Well, that is what we will concentrate on, the question of the injunction.  If you get the injunction you can in due course, either when the injunction is returned for extension or when the matter comes before a Full Court, agitate all the matters that your client wishes to have agitated.  If you do not get the injunction we are just not concerned with such matters.  Your client will be removed.

MR GERSTEN:   Indeed.  To the issues in-chief, my client submits that the Tribunal erred as a matter of law with respect to taking into account and granting an overabundance of credence to - - -

HIS HONOUR:   I am sorry, I am not hearing everything you say.  You have to lift your voice.

MR GERSTEN:   The prosecutor submits that the Tribunal had an overabundance of credence with respect to irrelevant considerations and a dearth of credence with respect to relevant considerations.  If that be so, that would be a matter for the High Court to consider because Parliament has seen fit to delete relevant considerations and irrelevant considerations as grounds of review of tribunal decisions.

HIS HONOUR:   Give me an example, by reference to the decision of the Tribunal, of an irrelevant consideration which you say the Tribunal took into account?

MR GERSTEN:   Yes.  These are of not so much matters of nuance as matters of degree, your Honour, and I would direct your Honour’s attention to the findings of the Tribunal on page 15.

HIS HONOUR:   Yes.

MR GERSTEN:   The problem that the prosecutor has is, I suppose, unartfully suggested to the Court in thoughts that are not intended to be coarse but to get the point across.  The Tribunal would have those who would read the Tribunal’s decision believe that a prostitute, in essence, cannot be raped or that a liar cannot tell the truth.  There has been ‑ ‑ ‑ 

HIS HONOUR:   Where do you say that is demonstrated in the Tribunal’s reasons?

MR GERSTEN:   Yes, in the findings of the Tribunal.  Now, I use that as a broad brush to paint the picture that I urge the Court to see with respect to the pending application.  I do so because in contra indication of the position taken by the Tribunal member, we have a woman - the Tribunal does not dispute that she was arrested; does not make a specific finding that she was not arrested; does not make a specific finding that she was not, once arrested, repeatedly raped by the authorities.  There is no finding.  There is a generic finding that we have an inconsistent and unreliable witness.  But there is no finding that the only evidence on oath before the Tribunal was hers and there is sufficient consistency in all of the evidence before the Tribunal to suggest that indeed that is true, so, to, in a word, punish Ms Abebe for not being truthful on three occasions by removing her from Australia and not permitting her a full ventilation of the issues to determine the veracity of her claim ‑ ‑ ‑

HIS HONOUR:   But where is the passage in the reasons that you say indicate that the Tribunal approached the matter on the footing that a prostitute could not be raped or that a person who told a lie could not tell the truth?

MR GERSTEN:   On page 15 I would direct your Honour’s attention to the findings.  If the Court wishes, I would be pleased to read that but the Court may wish to - - -

HIS HONOUR:   Which particular passage?  Just direct my attention to it.

MR GERSTEN:   It would be on page 15, findings, paragraphs 1, 2, 3; on page 16, 4, 5, 6 and 7; basically, the findings.  The Tribunal member, your Honour, finds that it is “possible that the Applicant may have suffered some form of abuse in her past” and, in fact, argues somewhat in favour of the applicant’s position with respect to too much weight accorded to irrelevant considerations and not enough weight accorded to relevant considerations.  The specific passages would be those that are found in the first three paragraphs of the findings on page 15.  I suggest that the objective indicia of truthfulness in this regard with respect to arrest and rape is not the inconsistencies and untruths uttered by the prosecutor at various times when the Tribunal member concedes that she was under stress but, rather, the fact that a very young woman undertook a several thousand mile trek from Ethiopia to Kenya, to Swaziland, to South Africa, and then half a world away to Australia, I submit, it was not because her life was particularly pleasant in Ethiopia.

HIS HONOUR:   That is not the question.

MR GERSTEN:   Of course not.

HIS HONOUR:   Under the Refugees Convention if every person whose life was not pleasant had a right to enter Australia under the Refugees Convention then there would be multi millions of people who would claim refugee status.  We have to be more specific.  We have to look at the grounds that are provided for refugee status.

MR GERSTEN:   Indeed.  Ms Abebe was both a member of AAPO and the Amhara social group.  Those two facts do not seem to be disputed.  She claims that as a result of her membership in this political grouping and her being an Amhara caused her arrest.  While in detention, representatives of the lawful authority of the government of Ethiopia repeatedly raped her.  That is her claim.  It was made on oath.  It has never once in all of her prior inconsistent statements been inconsistent.  She has maintained that position since day one in all of her interviews, full stop.

Now, tangential issues, it may be argued, she was untruthful about.  She may have been, she may not have been, but what she has been completely consistent about is arrest and repeated rape.  By dint of logic, that would drive a woman, were she able to escape, to do so.  So, it is the escape from persecution - - -

HIS HONOUR:   Which grounds of refugee status would be attracted by the establishment of arrest and repeated rape, if established?

MR GERSTEN:   The government of Ethiopia was unwilling to protect her and she was unwilling to ask the government to protect her because it was that government itself that was perpetrating this persecution upon her, your Honour.  There are five grounds that a person could fall under and then there would have to be persecution.  I would maintain that membership in AAPO, the political group, and the social ethnic grouping, the Amhara, would be two of the five groupings that would be necessary to attract the bifurcated test of a refugee.  That being so, I would then say that the arrest and repeated rapes of the woman, because of those two reasons, AAPO and membership in Amhara, would meet the Convention test of a refugee.     Does the Court wish me to continue on the line I am now?

HIS HONOUR:   Just proceed but keep in mind that on a special leave application you would have 20 minutes.  The matter should not proceed ‑ ‑ ‑

MR GERSTEN:   Indeed.  I believe that the findings of the Tribunal, together with the objective indicia of subjective feelings by Ms Abebe are fairly compelling that this matter is one that should be further ventilated and not - - -

HIS HONOUR:   But the problem is that the Tribunal saw her and she gave a series of versions of her history, repeatedly, they say, on six or seven occasions, clearing the slate, and that they just could not believe her.  This is the fundamental problem that it seems you face, that the tribunal of fact which is the only body that has seen your client said that she just gave six or seven different versions.  Justice Davies identifies three versions, three principal versions, and that makes it very difficult for a court on constitutional or judicial review to say, “We will pick this version or that version”.  In the One‑Child Case there was a clear basis, a factual foundation, for the application for refugee status but here the application is based on shifting sands.

MR GERSTEN:   The shifting sands or, as I would phrase it, the “.....uncertainty” vary between each member that an applicant may appear before it.  What may be uncertain or shifting sands to one member may be very solid ground to a different member, your Honour.  I keep returning ‑ ‑ ‑

HIS HONOUR:   I do not know about that.  All I know is that this member of the Tribunal who had advantages of seeing your client that neither Justice Davies nor I have said that she kept shifting her ground.  She had six or seven occasions to clear the slate and they just could not accept what she said was truthful.

MR GERSTEN:   With utmost respect to the Court, on none of those six grounds - three grounds - or anything in between has Ms Abebe in any way resiled from her strident claim that she was arrested and repeatedly raped.  I believe that the arduous trek of a young woman is to a reasonable person an objective indicator that this fact happened.  Now, I concede that it may be said that Ms Abebe was untruthful and inconsistent in other respects but in this respect she has never varied once.  Should all that she says be made untruthful because of inconsistencies of matters not directly relevant to Convention reasons for a claim of refugee status?  If the question is posed in that fashion I would urge the Court to consider that that not be so under the broad brush that I painted earlier this morning which is that even prostitutes can be raped and even liars can tell the truth.

In this instance, her repeated strenuous claims under what might be considered unpleasant, if not hostile, environments when these questionings took place would demonstrate that in this regard she is being truthful, which then leads me to relevant and irrelevant considerations which have been deleted by the Parliament, which brings me to the High Court today.  To be able to fully ventilate this in 20 minutes is an impossibility and to allow this woman to be removed from Australia tomorrow would defeat any opportunity that Ms Abebe might have to press her claim in the appropriate forum and in the appropriate fashion.  I suppose that is the essence of what I would urge this Court to consider today.

HIS HONOUR:   Is a transcript kept of the evidence given before the Tribunal?

MR GERSTEN:   Yes, it is.  Being mindful of the Court’s reminder with respect to time limitations on special leave, I will not further ask this Court to direct its attention to this particular argument.

HIS HONOUR:   So your essential first argument on a basis that you say would not have been available to you and was not available to you and, indeed, was excluded in the Federal Court is that in reaching its conclusion the Tribunal failed to give weight to the undisputed evidence that your client had been arrested in Ethiopia and subjected to repeated rapes whilst in custody there?

MR GERSTEN:   That is correct, your Honour.

HIS HONOUR:   And that on that basis the Tribunal can be demonstrated on the face of its reasons to have failed to take into account a relevant consideration which this Court would require it to take into account by an order setting aside the decision of the Tribunal and requiring that the matter be redetermined, taking that matter into consideration?

MR GERSTEN:   That, indeed, is the gravamen of the prosecutor’s case.

HIS HONOUR:   Yes, very well.   Well, that is clear.  Is there any other relevant consideration that was not taken into account or irrelevant consideration that was taken into account?

MR GERSTEN:   I believe that I have touched upon those that I would ask the Court to travel upon and in a general sense, mindful of the Court’s time, I do not feel it is necessary to build a foundation - - -

HIS HONOUR:   My reference to time was just an indication that I have lots of other things that I have to do.  It was not an indication that you should abbreviate unnecessarily the statement of your client’s case for an interim injunction to protect the utility of her application to this Court.  If there are any other relevant considerations which were not taken into account or irrelevant considerations which were taken into account or matters which demonstrate in the Wednesbury sense the unreasonableness of the decision of the Tribunal, then I want you to state them now so that I will understand them because it is now or never.

MR GERSTEN:   I do not believe that I can more succinctly state - - -

HIS HONOUR:   It basically comes down to the arrest and repeated rape which has not been taken into account?

MR GERSTEN:   Yes, that is correct, and that is precluded from review below because of Parliament’s deletion of Wednesbury unreasonableness and relevant and irrelevant considerations as grounds of judicial review of tribunal decisions.  That is why I humbly urge this Court to allow a full ventilation of this issue and not allow that full ventilation to be defeated by a removal tomorrow of Ms Abebe from the jurisdiction of the Court.

HIS HONOUR:   I have a recollection from general reading that the issue of rape in relation to refugee claims and also in relation to genocide claims has been the subject of a lot of writing recently.  Now, do you know any of that?  Is there any of that that is relevant to your submission that the failure to take that into consideration is a serious defect in the deliberations of the Tribunal?

MR GERSTEN:   I would certainly submit to the Court that I believe that to be true.  I have not read the specific writings. 

HIS HONOUR:   I think Professor Hilary Charlesworth may have written on this issue in relation to what has been described as a feminist view of international law.  You do not know of it?  You should not laugh because it is - - -

MR GERSTEN:   Your Honour, since time immemorial I think conquering armies, by norms of civilisation, are not entitled to rape females of the conquered populace.  I would have a very hard time seeing any author - - -

HIS HONOUR:   There is a lot of writing on this, particularly in Canada, but you do not know about it?

MR GERSTEN:   I would be more than happy to direct my attention to that should I be given the opportunity to fully ventilate this issue and not be defeated in doing so by imminent removal.

HIS HONOUR:   Yes.  That is the essence of your case, is it?

MR GERSTEN:   It is.

HIS HONOUR:   All right.  We will hear what Ms Cheetham has to say and then come back to what you have to say in reply.

MS CHEETHAM:   Your Honour, it appears that all we address today is errors of law allegedly committed by the Tribunal which were not amenable to review before his Honour.  That seems to be the case that my friend is putting today for the purpose of the injunctive relief. 

HIS HONOUR:   The amendment to the Migration Act which excludes the jurisdiction of the Federal Court in certain grounds of judicial review, has that affected the right of appeal to a Full Court of the Federal Court from so much of the matters as Justice Davies dealt with?  In other words, does the prosecutor have a right to appeal from Justice Davies’ decision to a Full Court of the Federal Court?

MS CHEETHAM:   On those grounds, your Honour, no.

HIS HONOUR:   Not on those grounds but on the matters that Justice Davies dealt with.

MS CHEETHAM:   Indeed, your Honour, and the period of time for that appeal has not expired.

HIS HONOUR:   So we can assume that either (a) that is not being pursued as futile, or, (b) that if it is pursued it is not really the foundation for the application to this Court?  The application to this Court is confined, as I understand the draft order nisi, to those matters which are excluded from the jurisdiction of the Federal Court, at least for the purpose of getting the interim relief that is sought before me today?

MS CHEETHAM:   Your Honour, I would have imagined that any other position taken before this Court would be an abuse of the processes of this Court and part of the objection that the respondent has today to any relief being granted by this Court is that his Honour Justice Davies has dealt with the findings of fact by the fact tribunal.  That decision is necessarily confined to the grounds that are provided for in the Migration Act, but nevertheless his Honour found, as a matter of law, that the Tribunal did not err in its factual findings.  My clients’ position today is that my friend has raised nothing that is not purely a matter for a factual tribunal and has been dealt with by a factual tribunal.

HIS HONOUR:   But he really raises one matter.  It has come down to quite a specific point.  He says that through all the versions - let there be three or six or seven - that the prosecutor has given, the one consistent fact has been that she was arrested in Ethiopia and whilst under arrest was subjected to continuous rape and that that has not found reflection in the findings and considerations of the Tribunal, that that is a serious failure to take into account a consideration relevant to a claim to refugee status and that at least it is sufficient to found an argument which this Court should defend by preventing the removal of the prosecutor from Australia today or tomorrow.

MS CHEETHAM:   Your Honour, the respondents’ riposte to that is that in the way that my friend has framed that issue for this Court, he has framed it in terms of either a credibility finding which is entirely a matter for a factual tribunal or, alternatively, a matter of weight as between the evidence given by the applicant and the - - -

HIS HONOUR:   I did not quite understand that to be his point.  I understood his point to be that when the Tribunal moved to its decision it did not really address itself to that particular feature and did not say, “We don’t believe that she was arrested; we don’t believe that she was raped”, it simply did not consider that matter and the consideration of that matter is a consideration which, at least arguably, is one which the Tribunal should take into account.  Can I put it quite bluntly - and I say this without any criticism to the Tribunal - that tribunals, so often constituted by men, may not always appreciate the significance of rape as an instrument of oppression and the suggestion is that this Tribunal failed to take that consistent statement by the applicant into account at all and that that failure is at least sufficient basis for an argument that this Court should defend the prosecutor to have the right to advance that argument in this Court.  The prosecutor might lose but it is not a manifestly futile question and the Court should protect the prosecutor’s right to advance the argument and have it determined according to law.

MS CHEETHAM:   I understand my friend to be saying that - if I can put it in these terms - he has framed it in two possible alternatives.  One is that there was a consistent claim of arrest, detention and rape - repeated rape.  That claim itself was not the subject of a finding by the Tribunal.  It neither accepted nor rejected that claim and that, in itself, either constitutes a failure to take into account a relevant consideration or, alternatively, it is unreasonable in the Wednesbury sense.

The second possibility is that there was a finding of credibility which rested upon the inconsistencies in the applicant’s story but which itself ought not to be a basis for an adverse finding on the otherwise consistent claim of arrest, detention and repeated rape.  I hope I am not being unfair my friend but that is how I understand the case being put today.

The respondents’ riposte to that is, first, findings of credibility, whether they involve claims of rape or torture or arrest or discrimination or anything of that nature are matters for the tribunal of fact.  Whether there is a failure to take those claims into account is a question of law but the weight which is given to those claims is a question of fact.  We say that the Tribunal considered those claims and in the weighing up process of her general credibility determined that it could not believe her claims as a package.

HIS HONOUR:   It is not quite like that though, is it, because it says that:

The Tribunal finds the Applicant an unreliable witness in this matter.

Now, what was meant by that?  I realise we must not read these as if they are set in stone but was it in respect of the matters that were immediately preceding that or was it generally, because it goes on to say:

Her claims in relation to ‘political opinion’ are unsuccessful.

That rather suggests that it is confined to the untruths relating to the claim of political oppression. 

The only one point I want you to concentrate on is the suggestion that when you look at the findings there is no real reference to the statement that the applicant was arrested and repeatedly raped, and it is said that that is a serious omission because that is a matter that is relevant one way or the other.  If it is rejected, fine, then that is the prerogative of the Tribunal of fact; if it is accepted, it may be relevant to the grant of refugee status but to simply omit to deal with it is a serious omission.        Now, that may be a good or a bad argument but the suggestion is that that is an argument that has sufficient in it to warrant protecting the prosecutor’s right to have the argument heard and determined.

MS CHEETHAM:   Indeed, your Honour, and I understand that if my friend is successful in raising that doubt in your Honour’s mind then my task effectively today is finished and we will have to come back another day and deal with it.  But if I could take your Honour to the RRT decision and, of course, keeping in mind your Honour’s own admonition to reading the reasons of factual tribunals, there is a section that is headed “FINDINGS”.  There are findings elsewhere in the Tribunal’s decision and, in particular, there are two findings which I will take your Honour to which were sufficient for his Honour Justice Davies to conclude that the Tribunal had dealt with this claim.  On page 15 of the RRT’s decision your Honour will see in the last paragraph - it is not a complete paragraph:

The Tribunal considers it possible that the Applicant might have suffered some form of abuse in the past.

That, your Honour, is, on my reading of the entirety of the decision, dealing with the claim of arrest and detention and repeated rape.  If I can take your Honour to the first full paragraph on page 15, his Honour Justice Davies was quite satisfied that the Tribunal, while not going into the specificity of each claim, had given the applicant a sufficient opportunity to put those claims and simply did not believe her and in that first full paragraph the Tribunal takes into account:

that the Applicant often claimed to have been fearful or confused on occasion when giving what she later admitted was false evidence.  This is not a satisfactory explanation for the range and magnitude of the inconsistencies in her evidence.

In my submission, what the Tribunal has done has made a credibility finding after taking into account all of her claims and, in my submission, his Honour Justice Davies was satisfied that the Tribunal went through that process.  Whether that process is described as “a failure to take into account a relevant consideration” or, on my submission, what it really is is a failure to accord the weight that my friend would have accorded to a relevant consideration, either way or, indeed, whether it is characterised as an exercise of a power so unreasonable that no reasonable person could come to it, in my submission, there is no ground; there is no basis for bringing those claims before this Court.

His Honour Justice Davies, dealing with them, admittedly within the constraints of the grounds of appeal that were available to him, found that there was no error in the Tribunal’s approach to considering those claims and dealing with them against the Convention.

HIS HONOUR:   Ms Cheetham, you know a lot more about the Refugee Convention and the application of it by Australia more than I do it.

MS CHEETHAM:   I would not confess to that, your Honour.

HIS HONOUR:   But could you help me on the relevance of rape to the application of the Convention?  Is it relevant to any of the Convention grounds?  It is obviously not relevant to the political group or social group, one would not think, but - - -

MS CHEETHAM:   Your Honour, I can envisage situations where it may well be and your Honour mentioned earlier the use of rape as a weapon of oppression and that can be to oppress an ethnic group, to oppress a political opposition, to oppress a particular social group, to oppress persons who are perceived to have a particular political opinion or it could be - - -

HIS HONOUR:   It could be used to intimidate female members of the minority community in a country simply to frighten them out of taking part in political agitation.

MS CHEETHAM:   And, your Honour, in much the same way as unlawful detention is a weapon of oppression for whatever reason the oppressor has, similarly I can imagine where rape could be used as a weapon of oppression for political, religious, ethnic or social reasons.

HIS HONOUR:   Where do I find the grounds?  Remind me of where - it is some time since I had this little exploration in the couple of cases we had last year.  Where does one find in the Act the Convention grounds?

MS CHEETHAM:   The Convention grounds are reproduced - your Honour has caught me slightly short.  I believe section 36 incorporates as ‑

A criterion for a protection visa -

in subsection (2) -

that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

So one then goes to the criteria for “a protection visa” which appear in the regulations.

HIS HONOUR:   They are in the regulations, are they?

MS CHEETHAM:   They are, your Honour, and the class of the visa is 866.  I am sorry, I do not have my glasses and I have some problem reading across columns but I think it is 866.

HIS HONOUR:   Perhaps I can lend you my glasses.

MS CHEETHAM:   If your Honour has a stigmatism they may assist.

HIS HONOUR:   I will need these regulations in order to - - -

MS CHEETHAM:   Does your Honour have the Butterworth Service?

HIS HONOUR:   No.

MS CHEETHAM:   Perhaps once I find it I could hand it up to you, your Honour.  I have led your Honour astray.  What the visa does is to say simply that “the Refugees Convention means the 1951 Convention”, et cetera.

HIS HONOUR:   Yes.  Now, is that a schedule to the Migration Act, the Refugees Convention?

MS CHEETHAM:   I know it was before the 1994 amendments, your Honour, and I have not had reason to need to look that up since.  Both the Refugees Convention and the Refugees Protocol are defined in section 5.

HIS HONOUR:   I am not worried about the definition because that is clearly to import into domestic law the Convention and as amended by the Protocol but what I want to do is have the text of the Convention before me as so amended.  Have you a reference to that text, Mr Gersten?

MR GERSTEN:   May it please the Court, I would direct the Court’s attention to page 3 of the Tribunal’s decision and reasons where the Tribunal recapitulates the Convention definition.

HIS HONOUR:   Yes, that is it, thank you very much.

MS CHEETHAM:   Your Honour, I have satisfied myself that the Convention itself is neither annexed nor appears as a schedule.

HIS HONOUR:   No, it is not.

MS CHEETHAM:   It does appear in the Butterworth Service, your Honour.

HIS HONOUR:   It says:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or.....unwilling to avail himself of the protection of that country.....unwilling to return to it.

So, the point would be whether the Tribunal in failing to make specific reference to the uncontested evidence of arrest and repeated rape and to reflect upon and turn its attention to whether that was for a persecution reason by reason of the race of the applicant or her nationality or her membership of a particular social group or her political opinion or any or all of these was either such a failure to address a relevant consideration or so unreasonable that no reasonable decision maker could do so as to attract the intervention of this Court.  That is the question.

MS CHEETHAM:   Yes, your Honour, I would agree with that.

HIS HONOUR:   Is that not, at least arguably, an important issue for the guidance of the Tribunal?  Is it not, at least arguably, important that tribunals in Australia, when they are looking at claims by female applicants, should turn their specific attention to whether a female applicant for refugee status has suffered rape as an instrument of oppressive policy by those in charge of their country of origin?

MS CHEETHAM:   Yes, your Honour.  However, my submission would be that the Tribunal did look at that.  My understanding of the case before the Tribunal was that the prosecutor argued that her arrest, detention and repeated rape was as a result of her membership of a particular political organisation, the AAPO.  I am not quite sure what that ‑ ‑ ‑

HIS HONOUR:   I just wish that the Tribunal had made a little bit more reference to it because, as you point out, the only reference to this is where it says:

The Tribunal considers it possible that the Applicant might have suffered some form of abuse in the past -

The matter that is frankly worrying me is whether that indicates a certain lack of sensitivity to the particular position of a female applicant for refugee status and a lack of attention to the particular form of oppression and the seriousness of the form of abuse which rape is - not only to females but principally to females.

MS CHEETHAM:   If I might adopt something that fell from your Honour just a moment ago in the sense that the question is not whether or not rape constitutes persecution; the question is whether or not rape is used as a means of persecuting someone for a Convention reason.  The Tribunal clearly finds that on her claim that this was a form of persecution for her membership of a political organisation, the All Amhara People’s Organisation, that it simply did not believe that she had a profile with that organisation that would render her liable to attention of any kind from the authorities in Ethiopia.

It then went on to say that it may well be that she has suffered some form of abuse but it was not for a Convention reason.  So, your Honour, in my submission, there is a prior inquiry, a prior hurdle, that needs to be jumped.  The applicant simply did not convince the Tribunal on that basis.  So, to the extent that there may have been what your Honour might term a cursory examination of the particular form of oppression claimed, that is understandable in the context of a decision where the Tribunal found that, whether it happened or not - and it was inclined not to believe her - it was not for a Convention reason and it was not relevant to the inquiry before the Tribunal.  His Honour Justice Davies had no difficulty with that approach.

HIS HONOUR:   But Justice Davies was excluded from consideration of this particular issue, so that this has been reserved to this Court.

MS CHEETHAM:   Yes, your Honour, and, strictly speaking, that is correct.  The spin that I would put on that, if I can use those terms, is that his Honour also dealt with this ‑ ‑ ‑

HIS HONOUR:   I think we should keep those terms to politicians.

MS CHEETHAM:   Thank you, your Honour.  The way in which I would respond to that is that his Honour considered this case very much in the context of his own judgment and the judgment of Justice Burchett in the matter of Eshetu which, completely coincidentally, also deals with an applicant from Ethiopia.  His Honour dealt with that at page 7 of his decision.

HIS HONOUR:   Was that a decision whilst the Migration Act was in its present form or was that before the Act was amended?

MS CHEETHAM:   I think, your Honour, that the application for refugee status preceded the amendments, but the decision itself was within the terms of the Migration Act as it presently stands.

HIS HONOUR:   Yes, I have page 7 of Eshetu.

MS CHEETHAM:   What his Honour says in his decision relevant to these proceedings is that the attention that must be given to claims and evidence by the applicant is something that, if there is a significant discordance between the claims and the decision of the fact tribunal, then a court can infer that there has been an error of law.  The process by which one identifies the error of law is now constrained by the Migration Act grounds, but nevertheless you must first start to look whether there has been a discordance between the claims of the applicant and the decision of the Tribunal.  Not wanting to put too fine a point on it, it is at that point that the error of law can be identified.  Your Honour, once that inquiry has been gone through, in my submission, the relevant factual inquiry by the Tribunal and the relevant legal test by the Tribunal have been considered in tandem and, in my submission, there would be no different result if that were considered under the relevant/irrelevant considerations unreasonableness grounds or under the kinds of grounds that his Honour felt himself constrained to apply in this ‑ ‑ ‑

HIS HONOUR:   I am not sure about that.  Judicial constitutional review remains.  Constitutional review adopts the orthodox grounds.  One of those grounds is the failure to have regard to a relevant consideration.  Another is to reach a conclusion that is so unreasonable that no reasonable decision maker would make it.  The suggestion here is that those grounds are attracted in a way that Justice Davies could not correct by the failure when it came to the essential reasons for the decision of the Tribunal to give due weight or any apparent weight to the uncontested fact that the applicant, a member of a minority community, had been arrested and, whilst under arrest, repeatedly raped and that that constituted an attraction of the refugee grounds.

The thing that is concerning me is not the outcome in this particular case, because that may or may not be a successful point, but whether that issue - that is to say, proper consideration of the significance of rape as a means of oppression principally of women - is a matter that ought to have been given express, explicit, particular consideration by the Tribunal and it did not.  That may be a good point or it may not be a point, but it is not without its interest and it may be enough to get the applicant, who presumably, subject to hearing any argument, would remain in custody in the meantime, the opportunity to have her argument heard by this Court.

MS CHEETHAM:   Your Honour, I can only reiterate that, in my submission, the issue of rape in particular has significance for the Tribunal once the Tribunal is satisfied that that is a weapon of oppression for a Convention reason.

HIS HONOUR:   Have there been cases where the Tribunal has dealt with that issue specifically?

MS CHEETHAM:   I am aware of at least one other case, your Honour, that I had that I took through the Federal Court which was unsuccessful.  I have so little of my practice at the Refugee Review Tribunal level that I only see them when they get to the Federal Court, unfortunately, or to this Court.  I would imagine it is not an unusual claim.

HIS HONOUR:   May I just ask you on the factual matter, do you agree that it was an uncontested fact that Ms Abebe was arrested and asserted that she had been repeatedly raped whilst under arrest?

MS CHEETHAM:   Your Honour, I must confess I took this file yesterday.  I have read as much of the papers as I am able to.  My colleague who was here earlier had the matter before Justice Davies and she suggested to me during my friend’s submissions that there was a consistency of that claim.

HIS HONOUR:   There was or was not?

MS CHEETHAM:   There was a consistency of that claim but that the context in which that claim had been raised was itself inconsistent.  The alleged timing of the occurrence of that event was inconsistent and there were - I withdraw that.  Just to that extent, your Honour, yes, it was a consistent claim in inconsistent ‑ ‑ ‑

HIS HONOUR:   That issue could not be resolved without reference to the transcript which I do not have before me today.

MS CHEETHAM:   It was an issue that was raised before his Honour Justice Davies who had the transcript before him.  I return to my submission:  his Honour was satisfied that there was no error in the approach of the Tribunal in dealing with the weighting and the consideration of that claim.

HIS HONOUR:   What I would be presently minded to do, subject to further argument, would be to provide either some interim relief or accept an undertaking that nothing would be done until late in January to allow this matter to come back before the Court when that issue, that is to say whether this was consistent evidence of the prosecutor before the Tribunal, could be explored in order that it might be considered in that context whether the failure of the Tribunal, or apparent failure of the Tribunal, to deal with it in the context of the real issues that were argued before the Tribunal demonstrates either a failure to take into account a matter that is clearly relevant or Wednesbury unreasonableness.

Then at least the Court would be in a position to decide whether this is a real issue or whether, looking at the matter in its context, the interpretation of the reasons that you advance is the proper one.  It is difficult to give that interpretation without giving both sides the opportunity of studying the transcript and perhaps having that transcript before the Court.  That is the course that I presently feel more comfortable to take.

MS CHEETHAM:   Will your Honour hear me on - first, if I might just clear one thing up.  I had a note handed to me during my friend’s submission.  The arrangements that have been made for the South African airline to take the prosecutor back to Johannesburg were, as I mentioned earlier, a little fluid.  What has actually happened is that a seat has been found for her on a flight at 9.40 this evening, so the time has been brought forward a day.  I mention that to your Honour.  There is some moderate ‑ ‑ ‑

HIS HONOUR:   She has paid for her claim for refugee status in a sense by being in detention now for nine months.

MS CHEETHAM:   I can take your Honour to the Migration Act.  That was a consequence of arriving without travel documents or a visa.  That was not a consequence of making a protection visa application.

HIS HONOUR:   Yes, but she would have known at every step that she took in her endeavours to stay in this country as a refugee that the effective consequence of her pursuing her claim was that she would remain in migration detention.

MS CHEETHAM:   That is correct, your Honour.

HIS HONOUR:   In that sense she has been in detention for quite a long while.

MS CHEETHAM:   If I can just modify my last agreement with your Honour.  No doubt she has been aware that she cannot be released from immigration detention until a visa is granted to her, whether it be a protection visa or some other visa, if I could just modify my response to your Honour.

HIS HONOUR:   Yes.  Subject to hearing anything that was said by Mr Gersten, I would not myself be inclined at the moment to disturb that situation, but I am just a little concerned about this issue of the way in which the Tribunal has approach what is asserted to be, and apparently accepted as, a consistent statement of membership of a minority group, some involvement in political activity, though not, it is suggested, very much, being a woman, being arrested and being subjected to repeated rape whilst in official custody.  It is the failure to address the last point that at least possibly gives rise to a basis available in this Court but not in the Federal Court and whether it is available or not may depend upon a proper scrutiny of the reasons in the context of the issues that were truly argued in the case below in the Tribunal.

MS CHEETHAM:   No, your Honour, it seems appropriate.

HIS HONOUR:   It is not necessary, as I understand it from your submission, for me to make any specific order that the prosecutor remain in custody.  She remains in custody by virtue of the operation of the Act.

MS CHEETHAM:   She does, your Honour, yes.

HIS HONOUR:   Do you agree with that, Mr Gersten?

MR GERSTEN:   That is my understanding, your Honour.

HIS HONOUR:   Very well.  The order which the Court makes is that until Wednesday, 28 January 1998 at 4 pm or until further or other order of the Court or of a Justice of the Court, the Minister, his servants and agents be restrained from removing the prosecutor from Australia, the prosecutor being Seniet Abebe. 

Thank you both for your assistance to the Court.  The matter will come before the Court again on that day.  Is there anything further that you ask, Mr Gersten?

MR GERSTEN:   Nothing further, your Honour.

HIS HONOUR:   Ms Cheetham?

MS CHEETHAM:   No, your Honour, thank you.

HIS HONOUR:   Such is the order of the Court.  The Court will now adjourn.

AT 11.32 AM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 28 JANUARY 1998