BRF038 v Republic of Nauru

[2017] HCATrans 177

[2017] HCATrans 177

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M28 of 2017

B e t w e e n -

BRF038

Appellant

and

THE REPUBLIC OF NAURU

Respondent

KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 SEPTEMBER 2017, AT 10.01 AM

Copyright in the High Court of Australia

MS G.A. COSTELLO:   May it please the Court, I appear with MR A.N.P. McBETH, for the appellant.  (instructed by Allens)

MR C.J. HORAN, QC:   May it please the Court, I appear with MR N.M. WOOD, for the respondent.  (instructed by Republic of Nauru)

KEANE J:   Ms Costello.

MS COSTELLO:   Your Honours have received a copy of the appellant’s outline of oral argument and you can see that it takes three main parts.  First, we will address you on the jurisdiction and roles relevant in this appeal.  Secondly, we will address you in relation to ground 1 concerning procedural fairness and, thirdly, we will address you concerning ground 2 in relation to persecution.

KEANE J:   Now, it is ‑ as we understand it, there is no contest that the appeal comes to this Court as of right. 

MS COSTELLO:   Yes, your Honour.

KEANE J:   So, you probably do not need to address us on that.

MS COSTELLO:   Yes, your Honour, may I clarify as to whether your Honour is observing that there is no contest in relation to whether leave to appeal is necessary?

KEANE J:   Yes.

MS COSTELLO:   As the Court pleases.  Will I address your Honours, though, in relation to the nature of the Court’s jurisdiction as the High Court’s decision in Ruhani v Director of Police (No 1) (2005) 222 CLR 489 makes clear that this Court has jurisdiction. We propose to step your Honours through the nature of that jurisdiction, noting that it is not a matter of controversy between the parties.

KEANE J:   Well, okay, it is not a matter of controversy between the parties.  Is there some controversy between the parties as to the nature of the jurisdiction in the sense that it affects the tests that we are to apply?

MS COSTELLO:   No, your Honour.

KEANE J:   Well, in that case, I think, you can work on the basis that you can just proceed to your substantive points.

MS COSTELLO:   Yes, your Honour.  In this case, the Tribunal’s decision, that is, the Refugee Status Review Tribunal of Nauru, concerned the claims for asylum and complementary protection status by the appellant, a man from Somalia.  Those claims were primarily based on his membership of a minority tribe.  The appellant submits that in conducting its review, the Tribunal first did not accord procedural fairness to the appellant by not disclosing material that was adverse to his claims and, secondly, erred by applying an overly stringent approach to what persecution is.  In these two ways, the Refugee Status Review Tribunal of Nauru failed to carry out its task in accordance with law and the Supreme Court erred in not so finding. 

The High Court is called upon to correct the errors of the Supreme Court of Nauru.  Before moving to the two grounds of appeal, we make two observations.  First, this is the first time that the High Court has heard an appeal from the Supreme Court of Nauru in a case where the Supreme Court of Nauru is exercising judicial review of the Refugee Status Review Tribunal of Nauru.  That is because that Tribunal only came into existence in 2012.

So, your Honours might bear in mind that at the time that the Tribunal made its decision it had no authority from the Supreme Court or this Court in relation to the nature of the provisions concerning procedural fairness and the interpretation of the Refugee Convention.  Similarly, when it reached the Supreme Court of Nauru, it was a fairly new thing for the Supreme Court of Nauru to be exercising judicial review of the Tribunal.

KEANE J:   Well, there is a first time for everything, I suppose.

MS COSTELLO:   Yes, your Honour.  The second observation that we would make at the outset is that in Nauru the Refugees Convention Act 2012 adheres to the test of persecution under international law in the Refugees Convention with some purity and does not narrow the application of that test in any of the provisions of the Refugee Act of Nauru, and nor does the Act narrow any procedural fairness obligations, and so your Honours immediately will recognise that we are in a different paradigm than the one your Honours often are called upon to adjudicate in relation to Australia’s Migration Act 1958.

Moving now to our first ground - but before I move to that first ground, your Honours, we will set the scene of what it was that the Tribunal and Supreme Court were doing and, unlike the Migration Act which has now become a very lengthy Act, the relevant Act in Nauru is quite a short one.  It is contained at tab 22 of the bundle of authorities and to clarify, your Honours, that is a full set of the Act itself as in force from 5 May 2017.  There have been some amendments, but the copy of the Act at tab 22 is the complete set that is currently in force and that is relevant for this appeal.

Now, what the Act shows, your Honours, is that the role of the Refugee Review Tribunal was merits review – de novo merits review of the Secretary’s first instance decision and the Secretary’s first instance decision was a refugee status determination decision under the Refugee ‑ ‑ ‑

KEANE J:   Ms Costello, we have read the written submissions.  We are familiar with how the matter comes here.

MS COSTELLO:   Yes, your Honour.

KEANE J:   There is not anything controversial about this.

MS COSTELLO:   No, your Honour, and ‑ ‑ ‑

KEANE J:   So perhaps we might try to get to the point. 

MS COSTELLO:   Yes, your Honour.  Your Honour, I would very briefly – it will only take five minutes - seek to draw the Court’s attention to seminal provisions of the Nauru Refugee Convention Act, as it is the first time this Court has looked at this particular Act.  Firstly, page 2 defines “refugee” as:

a refugee under the Refugees Convention as modified by the Refugees Protocol –

So it is a pure application of the international law.  It defines the “Refugees Convention” and the “Refugees Protocol”.  Section 4 of the Act contains the principle of non‑refoulment, again, unaltered from its international form.  Section 5 provides that an application can be made for refugee status to the Secretary – that is the first instance merits decision – and section 6 provides that that refugee status is to be determined. 

Section 7 sets out the powers of the Secretary in making that decision.  Section 12 provides for the establishment of the Refugee Status Review Tribunal – sorry, section 11 provides for the establishment of the Tribunal, and section 22, which is critical in this appeal, sets out that the way that the Tribunal operates:

(a)is not bound by technicalities, legal forms or rules of evidence; and

(b)must act according to the principles of natural justice and the substantial merits of the case.

Section 31 provides that:

A person may apply to the Tribunal for merits review of –

the Secretary’s decision.  Section 34 sets out the disposition powers of the Tribunal after its merits review.  Section 35 provides that the:

Parties may give information or written arguments to the Tribunal ‑

Section 37 has been repealed.  Section 40 provides: 

The Tribunal must invite the applicant to appear –

and if there is an analogue, that is an analogue to section 425 of the Migration Act (Cth).

EDELMAN J:   Apart from section 37, the provisions are all identical, are they, as they were on 21 May 2014?

MS COSTELLO:   Relevantly, yes, your Honour.  The only change of any relevance is to section 37 but I will seek instructions as to whether there were any other changes.  There may have been some that did not matter, your Honour.  The only change that matters in relation to this appeal is the repeal of section 37, your Honour.

Section 43 provides for an appeal to the Supreme Court on a point of law.  It is agreed between the parties that, although it is called an appeal, it is a first instance judicial review by the Supreme Court.  Section 44 provides the Supreme Court’s disposition powers after hearing the appeal.

I will just pause to mention section 37.  After the appellant had filed his appeal in this matter and, indeed, after the appellant had filed written submissions in the matter, section 37 was repealed with retrospective effect.  However, that does not undermine the force of the appellant’s procedural fairness arguments, because section 22(b) of this Act provides that the Tribunal:

must act according to the principles of natural justice and the substantial merits of the case.

Accordingly, the appellant puts his case on the basis of common law procedural fairness or statutory procedural fairness.  It does not really matter which way your Honours want to characterise it; it amounts to much the same thing.

Also, after losing 37, shall we say, the appellant has sought to bring an accurate complexion to this appeal by seeking to amend the notice of appeal to remove section 37 and replace it with section 40, which is the invitation to hearing section.  In interpreting the nature of the Tribunal’s procedural fairness obligations, both section 22(b) and section 40 are of great relevance.  Accordingly, given the Court’s acting with its own procedural forum rules, particularly section 32 of the Judiciary Act, we submit that the appellant ought to have any leave required to amend the notice of appeal to change it from 37 to 40.

KEANE J:   Yes, you have got any leave you need.

MS COSTELLO:   As the Court pleases.

Just briefly, at tab 26 you will find, your Honours, the actual Refugees Convention.  That is the definition of the term “refugee” at international law which is provided for in the Refugee Convention Act (Nr).

Moving now to ground 1, the Tribunal used information that the tribal composition of Somaliland police included members of every tribe.  We will call that for today’s purposes the police composition information.  We submit, your Honours, that the Tribunal used that information as a reason to affirm the Secretary’s decision to find that the appellant did not have refugee status.

The paragraph of most significance in the Tribunal’s decision is at appeal book page 160 at paragraph 48 and in that paragraph your Honours will see in the second sentence that the Tribunal states:

The country information indicates that there are police from every tribe in Somaliland –

and then there at page 160 at paragraph 48 in footnote 12 the Tribunal cites country information for that proposition.

KEANE J:   It is probably helpful, is it not, to look at it in context with paragraph 47 ‑ ‑ ‑

MS COSTELLO:   Yes, your Honour.

KEANE J:   ‑ ‑ ‑ because paragraph 47, in a sense, states the finding that is the real problem for your client, and that is the harm that he faced in the past was discrimination that did not rise in terms of seriousness to persecution.  The point that you would perhaps make is that at line 55 at page 159, the Tribunal says:

The Tribunal does not accept, based on his and his family’s past experiences and the country information, that there is a reasonable

possibility that the applicant would be subjected to a threat to his life or physical freedom as a member of [the tribe] in Somaliland.

And because it is then, when one goes to 48, that we see in the second sentence, the reference to the particular country information concerning the tribal composition of the police force.  So that you have got in 48 a reference back, or an elaboration and particularisation of the country information that is referred to in 47 that is the basis for the adverse conclusion, the conclusion adverse to your client.

MS COSTELLO:   Yes, your Honour.

EDELMAN J:   Then the conclusion is repeated at the end of 48.

MS COSTELLO:   Yes, yes, your Honour.

KEANE J:   So, you would say, you do say that that being so, it cannot be said that the failure to afford your client the opportunity to respond to the country information in relation to the tribal composition of the police force, it cannot be said that it was inconsequential, that it did not affect the decision against your client.

MS COSTELLO:   Yes, your Honour, we respectfully ‑ ‑ ‑

KEANE J:   That is what you say is the breach of procedural fairness and the breach of section 22.

MS COSTELLO:   Yes, your Honour.  We respectfully adopt your observation in relation to the interaction between those two paragraphs, 47 and 48.

KEANE J:   Well, we understand that point.  It might be that the Court would be better assisted by hearing what your opponents have to say in relation to that point and we can come back to you about the balance of your submissions, but having got that point the Court would be assisted by hearing what Mr Horan has to say in response.

MS COSTELLO:   Shall I sit now and ‑ ‑ ‑

KEANE J:   Yes.  Yes, Mr Horan.

MR HORAN:   Thank you, your Honour.  The ‑ I will not say short answer ‑ but the immediate answer is, we say, that that reference to country information at the bottom of paragraph 47 ‑ ‑ ‑

NETTLE J:   It is the one at the top of 158.

MR HORAN:   ‑ ‑ ‑ is not – well, we say, on the proper construction of the Tribunal’s reasons that is not referring to the country information ‑ ‑ ‑

NETTLE J:   In paragraph 48.

MR HORAN:   ‑ ‑ ‑ in paragraph 48 in the second sentence

NETTLE J:   It is referring back to the country information in paragraph 37 ‑ ‑ ‑

MR HORAN:   Precisely, about ‑ ‑ ‑

NETTLE J:   ‑ ‑ ‑ which is provided by the plaintiffs.  That gets you out of persecution but what about well‑founded fear of persecution.  You are in trouble there in 48, are you not?

MR HORAN:   Well, what was being dealt with at 48 was in part theTribunal moved on to consider broader issues of complementary protection, so the beginning of that paragraph, having made a finding in relation to past and future persecution, specifically by reference to threats to life or physical freedom but also be reference to the discriminatory conduct not being of sufficient seriousness, then moves on to look at whether that discrimination would attract other international obligations, namely, under the Convention Against Torture or the ICCPR and the ‑ ‑ ‑

EDELMAN J:   Paragraph 48 goes a bit further than that because the conclusion of 48 is concerned with well‑founded fear of persecution.

MR HORAN:   Yes.  So, the Tribunal does mix these issues up to some degree and returns – having commenced the paragraph – seemingly moving on to a new topic.

KEANE J:   Not really.  It begins, “Although”.  So, it is actually beginning with a qualification to what precedes before.

MR HORAN:   That qualification is a qualification to what follows in the balance of that sentence.  So, it is a clause which – what it means is the applicant has been subject to discrimination in the past.  However, the Tribunal does not accept that he would suffer torture or cruel, inhuman or degrading treatment or punishment in Somaliland.  The next sentence is, to some degree, puzzling because it is hard to see why – on our submission, that sentence was not directed to the question of effective state protection against persecution or other significant harm which would attract non‑refoulement obligations because the Tribunal was clearly finding that there was not a real chance of harm rising to that level.

KEANE J:   Why would one not understand it as a suggestion that, having concluded that they have been subjected to maltreatment that is aptly described as discrimination that does not rise to persecution, this is an indication of a view that what might, as discriminatory maltreatment shade into persecution, can reasonably be said not to because of the view that the tribal composition of the police force is apt to prevent that occurring?

MR HORAN:   In our submission, the discrimination versus persecution question which the Tribunal identifies as the main issue at paragraph 40 and which harks back to – as it indicates at paragraph 40 – the issue that had been posed at the hearing – and that is at page 144 of the appeal book – was not one directed to specific harm directed at the appellant but, rather, was looking at the general position of members of the [tribe] and the discrimination which they faced in economic and social terms.

EDELMAN J:   But, that is only relevant if it has some relevance to the appellant.

MR HORAN:   There are two issues at play.  One is the question of whether discrimination in employment, in education, in other matters rises to a level of being so serious as to amount to persecution or to cruel, inhuman or degrading treatment that the second issue which is, to some degree, dealt with in the earlier part of the reasons when the Tribunal deals with the applicant’s situation is whether or not there was a specific threat to the appellant and his family of harm from others on Convention grounds.

EDELMAN J:   Except this statement in 48 is coming at the end of a discussion of the first point.  So, the discussion really commences at 40 and it is the crucial issue of whether discrimination rises to the level of persecution.  It concludes at 48 and in 48 the Tribunal gives four reasons.  One of them is the country information that there is police from every tribe in Somaliland.  The second one is the applicant is only able to work in lowly paid employment.  The third one is he was only able to obtain limited education.  And, the fourth one is his family has somewhere to live, albeit a basic dwelling, and those four matters of discrimination, the Tribunal continues to say that they do not find that those four matters of discriminatory conduct, even when considered cumulatively, rise to the level of persecution.

MR HORAN:   Yes.  But, when the Tribunal refers to “redress from the acts of others” it is looking at a more general issue of what might be called equality before the law, that whether there is a discriminatory withholding – whether the police would respond to any issues that a member of the [tribe] would bring to the police.

NETTLE J:   That surely goes to the last sentence of paragraph 48, does it not?

MR HORAN:   Well, in the context of the reasons it goes to whether or not the discrimination amounts to persecution, not to whether there is protection against ‑ ‑ ‑

NETTLE J:   But, surely, knowing that there is a police force there that is sufficiently ethnically constituted to react to his complaints is something relevant to whether his fears of persecution are well founded.

MR HORAN:   Well, it may be.  Our principal submission was that there are what we call anterior findings at both paragraph 38 and in paragraph 47 that had disposed of the issue whether there was a real chance of persecution or a real risk of other harm attracting a non‑refoulement obligation so that this country information was not relevant or significant to those findings.

KEANE J:   But that is a very difficult thing to say for two reasons.  First, at page 158 you have the question in the heading, above paragraph 39, so that all that follows, from paragraphs 39 to 48, is directed to that question: 

Is there a reasonable possibility the applicant will be persecuted as opposed to being discriminated against  –

So that on the face of things it is being directed to that question and the second thing is that, prima facie at least, the circumstance that the Tribunal has referred to this consideration as to the tribal composition of the police force does suggest that it was material to their conclusion, leading to the negative answer to the question.

MR HORAN:   Yes.  We cannot say that the Tribunal did not regard it as having some relevance to its reasons or else it would not have ‑ ‑ ‑

KEANE J:   Said it.

MR HORAN:   ‑ ‑ ‑ said it or included it.  As I say, our principal submission was that it went to an issue that was separate to the other findings.  Now, if that is not the proper construction the question then becomes whether there is any basis on which it can be said that procedural fairness did not require this information to be disclosed.

So, to a large degree, this appeal turns on the construction of that sentence and it may be if your Honours are against the respondent’s primary submission then that resolves – it might go a long way towards resolving the issue on the appeal because if that construction is not accepted then the information was taken into account on an issue arising in the review ‑ ‑ ‑

EDELMAN J:   You could not take a Stead point here that, where it is one of four factors that are cumulatively considered, it could not have made any difference.

MR HORAN:   That point, to the extent that we raised it, was connected to or dependent upon our primary submission ‑ ‑ ‑

EDELMAN J:   The first submission.

MR HORAN:   ‑ ‑ ‑ about the construction of the reasons.  There may still be a residual point that is directed to the nature of the Tribunal’s procedural fairness obligations in relation to country information, and that is adverted to in our written submissions.  There has not been a great deal of case law in Australia on whether and when a decision‑maker, be it a delegate or a Tribunal, is required to give an applicant an opportunity to deal with or respond to general country information for the reason that there are statutory provisions which, for practical purposes, exhaustively address that issue.

So the content of the common law obligation in procedural fairness in relation to country information has come up relatively rarely.  But when it has come up – and if and when it is appropriate to do so I can take your Honours to – essentially, there are three or perhaps four main cases which are relevant.

There is the decision in Muin, the proceeding decision in Miah, a very brief consideration in the three‑member Full Court decision of Tahiri and then a conclusion in M61 in relation to each of the proceedings in that case but without much detailed reasoning.  What we would say can be drawn from those cases is that there is no general or universal principle that a decision maker must disclose all sources of general country information to an affected person such as an applicant.

It is usually where there is something about the country information and its relevance to the review which makes it more significant and in some cases, like Miah and Muin, that is because it is new information about changes in circumstances in a country which have arisen after the application is made and in some cases after the Tribunal hearing, which is then taken into account without notice to the applicant and treated as dispositive of the review.  So it assumes what has been called as a decisive or crucial importance in the adverse determination of the case.

There are other cases in which the significance might arise because the information is directly adverse in relation to the applicant’s claims.  So, if an applicant hypothetically were to claim that they were involved in an election in a country at a particular time or supported a particular candidate and there was country information relied on by the decision‑maker to the effect that there was not an election conducted in the country or region at that time or that that candidate did not run in the election, that would be information that would have a particular adverse significance for the facts of the claims advanced by the applicant.

I do not suggest that those are the only two examples where information can assume a particular significance, but accepting that one needs to look at the question not necessarily solely by reference to the Tribunal’s ultimate reasons, because cases such as VEAL and other cases note that what the Tribunal ultimately does with information is not conclusive as to whether or not the information was credible, relevant and significant to the review, but nevertheless there is no universal obligation to disclose all of the general source country information to an applicant for comment when one is dealing here with information that was general source information about a country that was publicly available, which is at the other end of the spectrum from something like a dob‑in letter in relation to the particular applicant, which was the case in Applicant VEAL.

EDELMAN J:   The test that you adverted to earlier from Alphaone, which is sometimes expressed as whether the information is crucial, that is not a test of whether but for that information the decision would have been different.  It is a test as to whether the information was a material part or a material step in the decision‑making process, is it not?

MR HORAN:   The Alphaone principle, that limb of it, is not couched in terms of critical information; it is critical issues.

EDELMAN J:   Yes, but there is nothing special about country information.

MR HORAN:   There is nothing special about it but it is different from a situation where there is something which is directly adverse to the applicant personally or to his claims because it can be information that is just part of a body of information that is there, which is directed to the issue of the security situation in Somaliland, the treatment of the [tribe] in Somaliland, the hardships and discriminations experienced and to the issue of availability of protection.

All of those issues were not issues of which the appellant was unaware, and so the appellant has addressed those issues and put in material in support.  A decision‑maker such as the Tribunal can assess the claims and can look at a whole range of source material which is often cited in reasons, so one will have in some Tribunal decisions pages and pages of country information from the UK Home Office, from the US Department of State and so on, and then one might have a conclusion at the end based on the country information, “I am not satisfied that members of this racial group face a real chance of persecution in the country.  Now, that ‑ ‑ ‑

KEANE J:   Where that occurs because it can fairly be said that it is common ground that the country information is regarded as available to the Tribunal and available as well to the applicant, one can see why there is not a problem so far as fairness is concerned with that state of affairs.  The problem that is really put against you here is where, as the other side would say, there is this unheralded reference to the information about the tribal composition of the police force which the Tribunal uses as a reason to conclude that such adverse treatment as the applicant is likely to receive as a member of the [tribe] would be moderated by members of the [tribe] in the local police force, and moderated significantly.

MR HORAN:   With respect, your Honour, that is a gloss on the finding that appears in the Tribunal’s reasons, but it is certainly ‑ ‑ ‑

KEANE J:   Well, it is an attempt to make some sense of it.

MR HORAN:   Yes, but it is quite an obscure reference.  I was going to note that one possible explanation, although at the risk of veering into the realms of speculation, is that the word “redress” is a word which is a term of art used in Article 14 of the Convention against Torture appearing immediately after a reference to a finding on whether the appellant would suffer torture or cruel, inhuman or degrading treatment.  It might have been why the Tribunal thought to deal with the question of redress, whether in the form of compensation or other forms of redress.

NETTLE J:   Mr Horan, in some cases in this country, as opposed to Nauru, where people take exception to the use that has been made of country information without it being drawn to the attention of the applicant, I have seen affidavits disclosing what the applicant could and would have said in response to it had it been brought to his attention.  Is it relevant that in this case there is no such evidence as to what the applicant could or would have said?

MR HORAN:   It may be, although we have not to date raised that point ourselves in our submissions so I should say – but that is not to say I think it could be relevant, as it could be also relevant that, despite the fact that this information is publicly available on the internet, the appellant did not seek to put the actual information before the Supreme Court in the proceedings below or in this Court on the assumption that that would be permissible because the Court is sitting in its original jurisdiction.

EDELMAN J:   Except in the courts below, in the Supreme Court and below, you had not raised on this possible construction the Stead point, so there would have been no reason for them to have responded to it.

MR HORAN:   Well, it still might have been – there was still an argument that – I think the Stead point was raised.  I think it was raised that there should be a discretion that either the – I can double‑check that, but I think the point that was put below was the information was not significant to the Tribunal’s reasons because of these sort of findings and that the court should exercise a discretion not to grant relief because in a sense largely dependent upon the submission that the information was not of significance.

KEANE J:   But the Supreme Court did not determine the case on the basis it was an exercise in discretion.

MR HORAN:   No, it said that ‑ ‑ ‑

KEANE J:   You have not got a notice of contention to raise it here.

MR HORAN:   I think that is correct, your Honour.  So, we – I accept that, your Honour, and if that precludes the point from being raised or being considered then so be it.  There have been cases, SZBYR, is an example where the Court did consider at paragraphs 27 to 29 of that judgment the Stead point and the discretion in relation to the decision arising in that case.  But, in one sense, assuming that some meaning and effect must be given to the second sentence of paragraph 48 and assuming our principal submission that it was not connected directly to the dispositive findings about absence of real chance of persecutory conduct or other harm that would attract non‑refoulement obligations, it then becomes a question of whether or not there is any other basis on which to say that there was no error by the Tribunal in failing to disclose the substance of this information to the appellant so that he could deal with it or respond to it and the – we would say that at a general level that it was not the type of information which would attract that obligation because it was general.

EDELMAN J:   Is not the difficulty with trying to draw a divide between information on the one hand that is particular to an applicant and information on the other hand that has an indirect effect on an applicant that the former category could be entirely innocuous and the latter category could sometimes be extremely dramatic and it will always depend on the facts?  So, the real issue ought to be the extent or effect of the information, not whether it is particular to an applicant directly or indirectly.

MR HORAN:   I accept that.  I do not suggest that the touchstone of whether an obligation to disclose arises turns on that and both Miah and Muin show that, as your Honour points out, general country information can be the dispositive reason why the claim is not accepted.  In that case, in one case it was an applicant who said I fear harm and I will not be protected by the government which was then in power and then after the application, or perhaps the hearing, there was a change in government which the delegate relied on to say, well, that is no longer a problem because the BNP have been ousted and the Awami League are in power therefore there is – that is a complete answer to your claim. 

Now, obviously, in that situation, the information would need to be disclosed if, for any other reason, it becomes a critical issue based on the new information and the new developments but the information itself is what the Court described as dispositive or determinative and the question is whether this information rises to that level in circumstances where it is not easy to tie the observation or finding about the availability of redress to the critical findings that the Tribunal made.  Now, if that tying is there and it is there in a central way then it is a short step to say that procedural fairness required it to be disclosed and dealt with and if ‑ ‑ ‑

KEANE J:   Well, especially in a case where, as you say, in your submissions, in relation to persecution, the conclusion, the evaluation – it is an evaluative exercise having regard to the evidence and weighing the factors.  If you have got a factor thrown into the mix that is apt to affect the conclusion, it is very hard to say that, is it not?  It is very hard to say that it is not something on which the conclusion turns.

MR HORAN:   It may be, your Honour.  When one looks at – in Miah, for example, Justice Kirby – in both Miah and Muin Justice Kirby identified or approached it as involving consideration of a range of factors and it is – I will just give your Honours the references, it is in Miah at paragraphs 192 to 193 and in Muin at paragraph 229 ‑ but that involves looking at a range of things which include the importance of the information. 

Now, that might go against me in this case because it might be that on what your Honours are putting to me this information is something which would meet the description that Justice Kirby in that case gave to the information as being of crucial importance, even determinative for the outcome of the application.  But our submission is it does not – that insofar as there is a need to look at these factors to assess what procedural fairness required, the information was not of that significance.

NETTLE J:   Assuming it were of significance, are we to assume that there is something that could and might have been said against the information, or is the burden on the applicant to demonstrate that there might have been something that could have been said in opposition to it?

MR HORAN:   I think my recollection is that there is at least an initial burden on the respondent.  That, in other words, the starting point might be that there is a – unless it is clear from the face of the decision that there might be something that can be said unless ‑ ‑ ‑

NETTLE J:   Unless it is shown to the contrary.

MR HORAN:   Unless it is both – the point is taken and it is shown to the contrary.  It might not need to be shown by evidence, but it might at least then give rise to a requirement for the appellant to go into evidence to show what might have been said ‑ ‑ ‑

NETTLE J:   That does not arise here.

MR HORAN:   ‑ ‑ ‑ but my understanding is in generally – other than in cases where the unfairness arises from the effect of some representation or the like, there is no requirement for an appellant to prove by evidence that there is something that might have been said, that one assumes that if the information had been disclosed ‑ ‑ ‑

NETTLE J:   Could have made a difference.

MR HORAN:   ‑ ‑ ‑ unless shown to the contrary that it might have made a difference.  So, for that reason, perhaps among others, our main submission in relation to discretion was to some degree at least dependent upon our primary submission about the degree of significance to which this information ‑ that should be attached to this information.  The case of Tahiri is – I mean, perhaps in one sense, if your Honours are against our submission on the role that this information played, it can be easily distinguished, but in that case there was an issue about whether the husband of the applicant was still alive and where he was. 

The applicant had said that he was missing and effectively missing presumed deceased, and in resolving the issues in that application the delegate relied upon undisclosed information about what the department knew about the movements of asylum seekers in similar circumstances to conclude that he was not deceased.  If there was a finding that he was deceased it would have affected the legal issue in the case about the identification of the home country and the application of the criteria. 

But the critical factual issue was, was the applicant’s husband still alive and, if so, where was he, and without any recourse to the applicant the delegate referred to undisclosed information about the movement of persons.  It was held in that case that, even if that information had been relied upon, it did not give rise to a breach of procedural fairness.  But why I say perhaps that can be distinguished – so at paragraph [24] the Court notes:

That the delegate referred to undisclosed material –

but says:

the material has not been shown to be adverse in any relevant sense.  The delegate did not treat it as contradicting Mrs Tahiri’s claim that the husband was missing and did not use it to make any finding as to the husband’s current location assuming him to be alive.

Now, as I say, that can be easily distinguished if your Honours find in this case ‑ ‑ ‑

KEANE J:   There is no doubt this information was used here.

MR HORAN:   We say that there is uncertainty as to how it was used.  But, in a way, that is the question of construction, that if the finding is that it was used to reach a conclusion that there was no reasonable possibility of persecution, for instance, then that is an immediate point of distinction from a case like that.  Justice Hayne in Muin dealt with country information in that case.  He may have been in the minority on the result on the procedural fairness point, but in his Honour’s judgment the fact that the information was important enough to note in the Tribunal’s reasons, did not mean that the information in question was critical to the reasoning of the Tribunal.

So, we say the fact that this appears in paragraph 48 as an observation made in the context of these findings – so, the relevant paragraph is at paragraph 275 in Justice Hayne’s judgment in Muin – and just as it is not conclusive, Applicant VEAL shows that it is not determinative that the Tribunal says I gave this material no weight.  That will not resolve a question of whether or not it was obliged to disclose the information.  But, conversely, the fact that the Tribunal refers to country information and treats it as important enough to note in its reasons does not necessarily mean that the information was significant in the sense of adverse information that is credible, relevant and significant to the decisions we made.  But, ultimately, it becomes a question, firstly, of construction of the reasons and in the context of the issues as they arose in the review.

All I can say is that our submission is that the issue that was being addressed in this section of the reasons was looking at whether general discrimination against members of the [tribe] amounted to persecution or other cruel, inhuman or degrading treatment.  And, that this observation

about the tribal composition of the police force did not play a significant part in the findings that there was no real chance of persecution or other arm sufficient to require the Tribunal to distinguish it from any other general source information in the country and put it to the applicant for response.

But, if your Honours are against me on the construction of the Tribunal’s reasons as to whether it did use it as a reason for decision as the appellant says, then I would accept that if the Tribunal did use this information as a reason for decision, then it probably was required to disclose it in order to discharge its obligation to provide fairness to the appellant.  I do not know that there is any further need for me to take your Honours through the decisions that I have referred to.  Our oral outline of submissions identifies the relevant paragraphs if your Honours need to look at them.

But, ultimately, all questions of procedural fairness obviously turn on the particular facts, and the procedures are moulded to suit the circumstances.  So, apart from providing some context and guidance, the ultimate question is one to be answered on the specific facts of this case.  But we do say that there is not a lot of authority on the circumstances in which, at common law, a Tribunal must disclose general information.

One would note, although it is not necessarily relevant, that if this question arose under section 424A, the statutory analogue of procedural fairness, it would not require disclosure because it would not be specifically about any person.  It would be treated as general information.

Now, accepting that at common law one does not have that dichotomy and the question just becomes one of is this information credible, relevant and significant adverse information, it is really a question on looking at the particular decision and the issues in the review and if your Honours take the view of paragraph 48 that the four facts as mentioned are four reasons ‑ ‑ ‑

KEANE J:   Cumulative.

MR HORAN:   ‑ ‑ ‑ cumulative reasons, each of which was necessary for the ultimate conclusion, then there is really not much more I can say, I do not think, at that point.

KEANE J:   Thanks, Mr Horan.  Ms Costello, we do not need to hear you further on this point, on the procedural fairness point.  So you can proceed to make your submissions in relation to the persecution point.

MS COSTELLO:   Yes, your Honours.  Just before doing so, may we indicate to the Court that in the outline of submissions there are some

passages that refer to specific authorities on point, some of which my learned friend has touched upon already and if we could draw your Honours’ attention to those passages via the note.  Also, just to raise something in reply – if you do not need to hear me, I will not be heard.  Dr McBeth is going to address ground 2, your Honours.

MR McBETH:   May it please the Court.  The appellant’s second ground is that the Supreme Court of Nauru erred in failing to find that the Tribunal applied the wrong test for persecution under section 6 of the Refugees Convention Act.  The Tribunal recited the correct test for whether a person is a refugee under the Refugees Convention Act.  However, the appellant’s case is that, having regard to the conclusions that were reached and the justifications for those conclusions in the context of the facts as found by the Tribunal, it is clear that the Tribunal in fact did not apply the correct test or else it fundamentally misunderstood what was required by that test. 

Now, the appellant does not disagree with any of the Tribunal’s findings of fact, nor does it disagree with the test that was recited by the Tribunal.  It is, rather, the Tribunal’s evident failure to apply the correct test or its misunderstanding of the application of that test which constitutes an error of law, in our submission, as does in turn the failure of the Supreme Court of Nauru to identify and correct the Tribunal’s ‑ ‑ ‑

NETTLE J:   Do you go so far as to say that upon a proper construction of the test and given the findings of fact it was not open to find that he was a refugee?

MR McBETH:   Yes, your Honour, that is what we say.  We say that ultimately the only way that the Tribunal’s justification for its finding – so having regard to the findings of fact that it had made, having regard to the test which was recited by the Tribunal, the only way that it could have reached those conclusions is either it actually applied a different test or that the findings that it made were simply not open to it on the basis of those findings.

To that end, having noted that the appropriate test under the Refugees Convention Act is that from the Convention itself, that is set out at paragraph 2 of the Tribunal’s decision.  We agree that that is a correct statement of the law.  But, of course, unlike the Australian Migration Act, neither the definition itself nor any of its component parts are actually defined in the Nauruan legislation, so our reference or the Tribunal’s reference is properly only to the international law and the laws of other jurisdictions – or the case law of other jurisdictions in interpreting that provision.

So, if I could start by taking the Court to the facts as found by the Tribunal and if I could take your Honours to page 156 of the court book – or the appeal book, rather – at paragraph 28 there:

The Tribunal accepts that [the appellant’s] family was forced off their land . . . as a result of their lowly status –

that is to say, their membership of a lowly tribe.  The Tribunal then goes on to find that after that the mother was reduced to earning “a subsistence - by selling items”, and it is significant here that the Tribunal in fact in the last sentence corrects itself mid‑sentence to indicate that the subsistence that we are talking about could not properly be considered a living, so the Tribunal says:

After this occurred the applicant’s mother then earned a living – or rather, a subsistence – by selling items.

So, that is the first finding.  At paragraph 30, the last paragraph which is at the top of – sorry, the last sentence which is at the top of page 157, the Tribunal accepts that the appellant may be prevented from accessing higher education altogether “as a result of his tribal membership” although it notes that he had received up to 10 years of schooling.  That is the second finding.  Then at paragraph 48 on page 160, the third sentence there, the Tribunal accepts that the applicant may be prevented or:

may be only able to work in lowly paid employment but would be able to subsist -

So, those specific findings, based on the appellant’s experience and his expectation of future harm, are in addition to the finding at paragraph 36 about the mistreatment that the [tribe] face as a group, which includes that they are viewed as dirty, that they are relegated to work in undesirable and low‑paying professions, that they have difficulty accessing education and they have difficulty accessing justice.  So those are the facts as found by the Tribunal.

Now, if I could draw the Court’s attention to the test for persecution that was at least recited by the Tribunal, that is found from page 158 from paragraph 43 where the Tribunal here recites the test that is summarised by the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status.  That is, as it happens, reproduced at tab 30 of the authorities, but this extract is sufficient for our purposes.

The appellant accepts that the UNHCR handbook is authoritative and an appropriate source for interpreting the Refugees Convention.  The appellant agrees that the test that is set out in the handbook and quoted by the Tribunal at this part of the decision is an appropriate test for assessing persecution as one component of the test under section 6 of the Refugees Convention Act  of Nauru and, indeed, Justice McHugh in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 also expressly approved of this part of the UNHCR handbook as setting out at least one component of the test for persecution under the Refugees Convention.

Now, paragraph 43 extracts paragraph 51 of the UNHCR Handbook.  It notes that a threat to life or freedom based on a Convention ground will always be persecution, but it goes on then to say that:

Other serious violations of human rights –

for a Convention reason –

would also constitute persecution.

Paragraph 44 of the Tribunal’s decision record then extracts paragraphs 54 and 55 of the UNHCR handbook.  Those paragraphs appear under the heading “Discrimination” in the UNHCR handbook, and they explain when discrimination will amount to persecution under the Refugees Convention.  The significant part here, in our submission, is the last two sentences of paragraph 54, which is to say:

It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned –

And then specific examples are given:

serious restrictions on his right to earn his livelihood, his right to practise his religion –

which does not arise in this case:

or his access to normally available educational facilities. 

We say that that is a correct statement of the appropriate test.  Paragraph 45 then goes on to quote from the Nauru Refugee Status Determination handbook.  Again, the appellant accepts that that source is an appropriate guide to the Refugees Convention test as understood in the law of Nauru, even though it is not itself a legal instrument and has no binding authority in and of itself.  That says:

serious violations of non‑derogable rights would normally constitute persecution.  Serious breaches of other rights would generally also be considered persecution, particularly if these have a systematic or repetitive element . . . or if there has been a persistent pattern of discrimination.

The Tribunal then goes on to note that persecution can be even broader than that which is to say beyond human rights violations and without necessarily needing systematic or repetitive element.

Up to this point, the appellant agrees that these sources that have been cited by the Tribunal are a proper formulation of a test for persecution under the Refugees Convention.  Indeed, that test is consistent with authority from this Court in interpreting the meaning of “persecution” from the time when Australia also defined refugees by reference to the Convention, particularly the case of Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 at 258 - I will not take your Honours to it but I simply note that they are consistent – and also Chan v Minister for Immigration and Ethnic Affairs at page 431.  Chan, your Honours, is not in the folder of authorities.  However, the relevant passage is extracted and quoted in the case of Prahastono, which is at tab 5 of the authorities.

Further, the case of SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497 sets out a very detailed survey of the applicable law applying the persecution test in great detail. The consensus emerging from that survey that the Full Court undertakes in SZTEQ is that it is consistent with that recited in paragraph 54 of the UNHCR handbook, which is to say a serious restriction on the enjoyment of rights, as opposed to complete deprivation of those rights, will constitute persecution if it is the result of discrimination for a convention reason.

I need not take the Court through that survey in SZTEQ; we are, for our purposes, content to rely on the UNHCR handbook portion that is extracted in the Tribunal decision as the appropriate test in the facts of this case.

Now, here, however, is where we say the Tribunal goes wrong.  The test that the Tribunal then in fact applies is quite different from the test that it has here foreshadowed.  We can find that by looking at the findings on persecution that the Tribunal makes at paragraphs 47 and 48.  The Tribunal finds at 47:

the harm the applicant and his family faced in in the past was discrimination.  It was not of sufficient seriousness to amount to persecution –

and it goes on to explain its reasoning for reaching that conclusion, which reveals, in my submission, the test that the Tribunal in fact applied to the facts as found.  First, in 47, the Tribunal finds:

He was able to obtain an education and the family was able to earn a bare living.

So the finding that he was able to obtain an education was made in the context where the Tribunal had already found that the appellant could expect to be excluded from higher education on the basis of his tribal status.  That followed the recitation of the test from the UNHCR, with apparent approval, which said that discrimination would amount to persecution if:

measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his . . . access to normally available educational facilities.

Nevertheless, the Tribunal found that, because the appellant had been able to access some schooling as a child, that this was not a serious breach of his rights.  That finding is then expanded at paragraph 48, in the middle of the paragraph, where the Tribunal says:

He was able to obtain a limited education in the past and although the Tribunal accepts that he would not be able to study agriculture, the Tribunal does not find that this can be called a serious breach of his human rights and it is therefore not persecution.

That is the first conclusion.  The second conclusion that I draw to the Court’s attention is the other half of that same sentence in paragraph 47, which is to say: 

the family was able to earn a bare living.

KEANE J:   Is your point that where discrimination has the effect that someone who could generate a reasonable living is reduced to bare subsistence by reason of a Convention reason, that is persecution and it is persecution notwithstanding that the person can survive.

MR McBETH:   That is right, that is exactly our submission, your Honour, and it must be so because if the test is an interference with the rights or a limitation ‑ ‑ ‑

KEANE J:   Well, if other people who are not being subjected to this treatment for that reason are living better, as you would say your client’s family were before they were moved off the land ‑ ‑ ‑

MR McBETH:   Yes.

KEANE J:   ‑ ‑ ‑ that starts to look like persecution, or is persecution.

MR McBETH:   Indeed, so there are two overlapping limbs here.  There is the fact that they were pushed off the land which relegated them to a subsistence life which the Tribunal was at pains to say this is not a living, it is a subsistence - there is that element to it, and there is also the fact that because of his tribal identity, he is excluded from all but the lowest paid forms of work.  So there is explicit racial or tribal discrimination saying that all but the lowest forms of work are unavailable to you.

KEANE J:   Well, except one has to be a little careful with this, does one not, in the sense that there are a lot of societies, some of them quite important and advanced, where the society is organised on the basis of caste and the lower caste do not do very well.  One would hesitate to say they are being persecuted.

MR McBETH:   Well, if the test is being applied as described by the UNHCR, if you had, for instance, the untouchable caste ‑ ‑ ‑

KEANE J:   In India.

MR McBETH:   ‑ ‑ ‑ in India, indeed, being relegated to only the dirtiest, most unpleasant and lowest paid jobs on the basis of their caste and if an individual applicant for a protection visa could demonstrate that he had a well‑founded fear of being subjected to that upon return to India, then that would be, in my submission, an instance of persecution.  But, in this case we go far beyond that.  It is not just being excluded from a particular type of work.

KEANE J:   It is just that that is a rather large submission, given that what you are suggesting is the potential for hundreds of millions of Dalits qualified as refugees.

MR McBETH:   Well, if that were the case in fact, if there were a well‑founded fear for that persecution, that sort of persecution is illegal now in India.  There might be some sort of – I am getting into the realm of hypotheticals here but it may be that there is an answer to that claim which is that such a person could avail himself or herself of effective State protection because it is forbidden under the Constitution of India.

EDELMAN J:   Is not the difficulty with your submission that you are really concerned with the application of the test, not the test itself.  Your ground of appeal alleges that the Tribunal applied the wrong test, but your submissions are really directed to the unreasonableness of the conclusion reached by the Tribunal in application of the correct test.

MR McBETH:   Well, in my submission, it is two different ways of looking at the same error, your Honour.

EDELMAN J:   Well, one is an unreasonableness complaint, or an irrationality complaint, and the other is a complaint that the Tribunal has made a legal error by applying the wrong legal test.

MR McBETH:   Yes, that is so.  In this instance, your Honour, I would say that they are two sides of the same coin because one can ‑ ‑ ‑

EDELMAN J:   Unreasonableness can sometimes be shown by showing that the wrong legal test was applied.

MR McBETH:   Indeed.

EDELMAN J:   But there are many other ways of applying the right test but still reaching an unreasonable conclusion.

MR McBETH:   Yes, that is so.  It is our submission that by starting at the conclusions and the justifications in the context of the facts as found, the only plausible or logical explanation for them is that the test that the Tribunal, in fact, applied was not that that it had enunciated.  An alternative way of reading exactly the same conclusions would be to say that it was not open to the Tribunal.  The Tribunal has misunderstood the test and it has reached an irrational or unreasonable conclusion which is, essentially, the complaint in Chan.  I take your Honour’s point that they are two distinct legal errors arising from, effectively, the same complaint. 

KEANE J:   If we focus on paragraph 26 of your outline, you say it is evident from the Tribunal’s conclusion and justifications for those conclusions that it applied the more erroneous test requiring complete deprivation.

MR McBETH:   Yes.

KEANE J:   Where is the best indication of that in the reasons of the Tribunal that they are applying a test of complete deprivation?

MR McBETH:   Yes.  The instances that I am currently taking your Honours through, in my submission, do that.  So, in the education example, the Tribunal accepts that he is completely excluded from higher education.  He could not expect to go back and continue his education further because of his tribal membership, but because he had some education that is okay, that is not enough.  So it follows that the logical extension of that reasoning is that only complete deprivation, which is to say no schooling at all, would have satisfied this Tribunal. 

The same is true of the subsistence point.  The family had been pushed off their land, pushed into something that the Tribunal itself was at pains to say is not a livelihood, it is a subsistence but that is enough.  So, if being pushed to the point of subsistence living is not enough for persecution, what would be?

KEANE J:   It is only if you have been reduced to starvation.

MR McBETH:   Indeed.  That is the logical conclusion, your Honour, yes.  So, in my submission, the Tribunal in reaching those conclusions must have applied a test which is to say complete exclusion or complete deprivation of the enjoyment of those rights as distinct from a serious prejudice to the enjoyment of those rights which is what the test says – which is what the UNHCR’s extrapolation of the test says. 

So, in my submission, that is exactly what the Tribunal has done.  Furthermore, as far as the pushing the family off the land is concerned, the Tribunal does not appear to have had any reference at all to the right not to be arbitrarily deprived of property which is a right protected ‑ ‑ ‑

KEANE J:   Well, no, the Tribunal found they did not own it.  It was not their property.

MR McBETH:   That is true.  They said they did not have title to it, but that is not necessarily dispositive of that point.

KEANE J:   It is just the submission is a bit difficult, is it not, if you are going to say that they have arbitrarily deprived of property, when that has not figured in the case to this point and we are not really in a position to say whether they have been deprived of their property or not.

MR McBETH:   I need not pursue that point, your Honour.  It is not central to our argument.  The other aspect there is that – on their being forced off the land point, there is no consideration of whether the impunity with which the appellant’s family were forced from their land because of their tribe would give rise to a well‑founded fear that a similar event might happen again in the future if he returns to Somalia which, I suppose, is tied into the point that was explored earlier about the issue of State protection being an integral part of the persecution test, as applied in 48.

It is the appellant’s submission that the conception that the Tribunal has applied here is clearly applying a test which is materially different to the

one that the Tribunal itself has recited as being applicable under the Refugees Convention and that the Supreme Court of Nauru’s consideration of the appellant’s argument that it applied – that is to say the Tribunal applied a more stringent test for persecution than the law provides appears at page 464 of the Court book at paragraphs 24 to 31.  The Supreme Court here recites some of the submissions made by the appellant and respondent and then concludes at paragraph 31 on page 465:

I am satisfied that the Tribunal’s findings were open to it on the basis of the evidence before it, and that it did not apply ‘a more stringent test’ regarding what constitutes persecution.

There is no engagement in the Supreme Court’s reasons with the issues of what the correct test is or what the Tribunal in fact applied by way of a test before concluding that the test that was applied was appropriate and in failing to find that the Tribunal applied an incorrect test for the reasons that the appellant has submitted, it is submitted that the Supreme Court of Nauru made an error of law.  Your Honours, those are the appellant’s submissions on the second ground.

KEANE J:   Thank you, Dr McBeth.  Yes, Mr Horan.

MR HORAN:   Your Honours, our basic submission is that the findings made by the Tribunal did not necessitate as a matter of law the conclusion that the appellant had experienced or might experience persecution for reasons of his membership of the [tribe].

NETTLE J:   That is to say it was open to find that there had been no serious deprivation of rights.

MR HORAN:   Yes.  So we would submit that unless it can be said that it was not open to reach the conclusion that it did that this was discrimination not of sufficient seriousness or severity to amount to persecution, unless it can be said that that was not open then it cannot be inferred that the Tribunal did not apply the test that it had set out immediately before its consideration. 

So accepting that both in the judgment of Justice Hill in Prahastono and in SZTEQ that the assessment whether or not particular treatment amounted to persecution is a question of fact and degree for the decision‑maker and involves an evaluative exercise, that what was being set out at paragraphs 47 and 48 and, for that matter, in the earlier paragraphs were simply findings to which the test was applied. It is a mistake to treat those findings as the statement of the test.

The only way in which one could find legal error in the way in which the Tribunal addressed this factual question ultimately and evaluative exercise would be if there were clear findings of fact made that must, as a matter of law, have met the threshold under the relevant Convention tests.  There is nothing, with respect, in the findings which is of that nature.

KEANE J:   What do you say to Dr McBeth’s point that the Tribunal approached the question on the footing that reduction to bare subsistence was not persecution?

MR HORAN:   Well, that was - in the circumstances of this case the fact that the appellant’s family, his mother and some of his brothers had been able to earn a living, albeit a bare living, and the fact that the appellant had received education at least to year 10, all of those things were factors to be plugged into its ultimate question of whether or not there was a denial of rights that was of such seriousness or repetitiveness or of such a systematic nature that it amounted to persecution.

The disadvantaged economic and social position of the [tribe] as one of the low castes or groups within Somali society, one of the lower clans, does not of itself mean that everybody in those groups is experiencing persecution, if they are able to earn a living and obtain some education and the like.

Now, that does not necessarily mean that the Tribunal was saying there cannot be persecution or, for that matter, degrading treatment unless you are reduced to starvation, unless there is a complete deprivation of rights, unless you are prevented from all education.  The Tribunal did not certainly articulate any such proposition or test. 

It set out, over four paragraphs, the principles which are accepted are the correct test and it then made findings of fact and reached conclusions and the only issue as a matter of law is whether or not, having made those primary findings of fact, the ultimate finding of fact that there was not persecution was open as a matter of law and it could only be said that it was not open if those findings necessitated no other conclusion and ‑ ‑ ‑

EDELMAN J:   Do you accept that a finding that could be characterised as unreasonable or irrational within the narrower sense of unreasonable or irrational described in the Lie Case, will necessarily always be a finding that is not open?

MR HORAN:   Well, yes, I think by definition, and whether one takes the view that that factual finding leads to inferred legal error, which is perhaps closer to the approach that was taken in a case like Chan, or whether it is simply that there is an implied condition on the power that it must be exercised rationally, that implied condition is probably more apt for, as in Lie and other cases, the exercise of discretionary powers then for matters like the present which is findings of fact and conclusions of fact but there is still, as other cases show - there is a legal constraint on making factual findings that requires them to be rational based on probative material and logical grounds and the like.

So, in an extreme case if, on the face of the reasons, there was a glaring illogicality in the steps that the Tribunal took to reach the ultimate conclusion, or if there was a direct inconsistency between the test that it set out and then it made findings that I accept there was a serious and systematic deprivation of rights, et cetera, something which borrowed from the terms of the principles that it had just set out and then nonetheless found that it was not persecution, then that might be something where the conclusion just did not follow from the findings.

But in this case, the findings were not tests.  They were simply the primary findings that were made in order to apply the principles that are not in dispute that arise from the Convention and, in my submission, none of the cases including the discussion in SZTEQ on the meaning of the Convention get to the point that as a matter of law, treatment of the nature experienced by the appellant must be found to be persecution and any conclusion otherwise is in error either because it is irrational or illogical or because one infers that the Tribunal must have applied the wrong principle.

So, really we say that, taking the principles that were set out and looking at the findings it was open to reach the conclusion that the harm and treatment, admittedly discriminatory on grounds of race, experienced by the appellant, was not of such a nature as to amount to persecution.  It was not a threat to life or physical freedom and although it potentially engaged some of the other human rights that the Tribunal refers to at paragraphs 44 and 45, it was really a matter for the Tribunal to determine whether or not any breaches of those rights were sufficiently serious, of sufficient severity or intensity or systematic or repetitive in a way that would engage or require a conclusion that it amounted to persecution.

So, really I can do no more than say that excepting that on the case as it is a matter of fact and degree and an evaluative exercise for the relevant decision‑maker that it was open to the Tribunal to make the finding or reach the conclusion it did as a matter of – on the factual findings that it made and, therefore, to engage in a review on its findings ‑ ‑ ‑

KEANE J:   But it was open to it to reach the conclusion as a matter of law on the factual findings that it made.

MR HORAN:   Well, the conclusion that it reached, which was a factual one, excepting that the question whether or not there is persecution involves a question of fact and degree that that was open as a matter of law and so it is not a matter of taking factual findings and saying that as a matter of law there was really only one conclusion available and so to engage in the exercise which the appellant invites the Court to engage in of going through the various findings about the different rights is really merits review at some level.  It is not simply – the Court is not simply asked to determine as a fact whether this is persecution but when properly analysed it is asking the Court to go through these findings and engage in something which is, in substance, a merits review of the ‑ ‑ ‑

EDELMAN J:   It is not merits review at all, is it?  It is taking uncontested findings of fact and asking whether a legal conclusion was open on the basis of those uncontested findings of fact.  It is a legal question.

MR HORAN:   I accept that is a legal question and if that is the question then, we say, the answer is obvious, that it was open, but anything beyond that, we say, does invite a review of the factual findings at a level which does not fit with the proper role of the Court on judicial review when looking at a question of this nature.  If your Honours please, those are our submissions.

KEANE J:   Thanks Mr Horan.  Ms Costello, anything in reply?

MS COSTELLO:   There is no reply, your Honour.  Just one matter, I have the amended notice of appeal signed and just would hand that up to you.

KEANE J:   Thank you.

MS COSTELLO:   There are five copies.  Would the Court be assisted by any submissions in relation to the order sought?

KEANE J:   Yes.

MS COSTELLO: The appellant seeks, as you will see in the amended notice of appeal, that the appeal be allowed and that the order of the Supreme Court of Nauru be set aside and in lieu thereof order that the matter be remitted to the Refugee Status Review Tribunal with costs. Those orders are within the jurisdiction of the Court order under section 8 of the Nauru (High Court Appeals) Act.

KEANE J:   Thanks, Ms Costello.  The Court will consider its decision in relation to this matter and the Court will now adjourn until 10.15 am on Tuesday, 12 September.  Adjourn the Court please.

AT 11.35 AM THE MATTER WAS ADJOURNED