CRI026 v Republic of Nauru; DWN027 v Republic of Nauru; EMP144 v Republic of Nauru

[2018] HCATrans 11

[2018] HCATrans 011

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M131 of 2017

B e t w e e n -

CRI026

Appellant

and

THE REPUBLIC OF NAURU

Respondent

Office of the Registry
  Melbourne  No M145 of 2017

B e t w e e n -

DWN027

Appellant

and

THE REPUBLIC OF NAURU

Respondent

Office of the Registry
  Melbourne  No M151 of 2017

B e t w e e n -

EMP144

Appellant

and

THE REPUBLIC OF NAURU

Respondent

KIEFEL CJ
GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 FEBRUARY 2018, AT 10.15 AM

(Continued from 7/2/18)

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   Yes, Mr Burnside.

MR BURNSIDE:   If the Court pleases.  At the end of yesterday I was dealing with the first ground of appeal:  the failure to take into account the appellant’s objections to relocation.  Those objections were that he and his family would face substantial prejudice concerning education, employment and essential services, and it was supported by his evidence found at appeal book 35, paragraph 21 in particular. 

He lived in hiding while he was away from home and kept quiet because, as he said, there is no freedom to express political views in Nepal – again, at appeal book 35, paragraphs 19 and 20.  He does not have tertiary education or professional education and limited skills.  His evidence on that is found at appeal book 112 and also at appeal book 129, line 6.

There was a fourth matter which is raised in our submissions and dealt with in Nauru’s submissions in response:  that he holds fears for the safety of his wife and son.  By an error, that ground is not articulated in the grounds of appeal, so we seek to amend the grounds of appeal to incorporate paragraph (d).  If I may hand up an amended notice of appeal.

KIEFEL CJ:   I think we have it, Mr Burnside.

MR BURNSIDE:   Thank you.  I should say that I am grateful to our learned friend.  He drew our attention to the discrepancy between our submissions on the one hand and the grounds of appeal in the notice of appeal on the other hand last night.

KIEFEL CJ:   Is there any objection to the leave to amend?

MR KENNETT:   No, your Honour, we ‑ ‑ ‑

KIEFEL CJ:   Yes, you have leave.

MR BURNSIDE:   If the Court pleases.  And the fears for the safety of his son.  The evidence is found at appeal book, page 113 and at appeal book, page 166.

Those grounds are not mentioned –they were, primarily, grounds for his claim for refugee status but, of course, they are also relevant to his claim for complementary protection.  And, when the Tribunal came to deal with complementary protection, they simply did not discuss that at all.  Relocation – the reasonableness of relocation – is dealt with at appeal book 187, paragraphs 39 and 40 and 41.  And, there is no reference, whatever, to any of those four elements that gave rise to his concern. 

It is clear from the decision of Justice Hayne in M13 that the decision‑maker is required to look at the particular circumstances of the claimant.  Whereas, what the Tribunal did, at 187, is simply to say it:

is satisfied that the applicant could reasonably be expected to establish himself elsewhere in Nepal and live a normal life without undue hardship.

No trace of any of the four grounds upon which – in the alternative to refugee status – he would object to internal relocation.  Now, the authorities make it clear that internal relocation is something which requires the decision‑maker to take a forward‑looking approach to what would happen to a person with his specific characteristics in a particular place of suggested relocation and there is simply no trace of that in the Tribunal’s reasons.

I should mention to the Court that yesterday the Full Federal Court decided a case of CSO15.  Copies are about to be provided.  We provided a copy of this to our learned friend last night.  It was a court consisting of Justices Tracey, Mortimer and Moshinsky.  It concerned internal relocation and what it held was that it was safe for the appellant to relocate to his home district.  That involved some degree of confusion about what his home district was, but that is not important for the purpose of understanding the reasoning.

At paragraph 22, the Court found that it would be safe to return him to his home region so there is no need to inquire into his circumstances.  That is understandable, given that he has a history of being in his home region, there would be no reason to inquire whether sending him back to that place ‑ ‑ ‑

KIEFEL CJ:   What do we take from this case?

MR BURNSIDE:   At paragraph 42 the question was:  to where will the applicant return?  And in that context what is to be examined is the place to where he will be returned, identify the place and assess the risks associated with that.  Now, this was a special case because they said that he would be safe returning to his home district.  Here, the Tribunal said the opposite.

But what they did not do was to identify any place to which he would be returned and what they did not do was to assess whether return to that other, hypothetical place would be reasonable in the sense of practicable for a person with his particular characteristics, including his relatively limited qualifications and his concerns about his wife and son.

NETTLE J:   Does this paragraph 42 recognise the legitimacy of the internal relocation option for the purpose of complementary protection?

MR BURNSIDE:   Yes.  Mr Albert quite rightly reminds me that this is concerning complementary protection as assessed under the Migration Act, taking into account section 36(2B).  Your Honours, I was going to ‑ ‑ ‑

NETTLE J:   I am sorry, Mr Burnside, just before you go on, I am not quite sure that I grasp the significance of this 42 to your argument, about the place of location.  How does that apply to this case?

KIEFEL CJ:   Are you relying upon this case to say no more than that there is a factual inquiry necessary?

MR BURNSIDE:   We do rely on it for that.  We thought that since it was very recent and on‑point, we should draw it to the Court’s attention.

NETTLE J:   How does it translate to this case?  What do you say it means that the Tribunal should have done or should do?

MR BURNSIDE:   There are circumstances in which the Tribunal does not have to look at the practicalities of relocation to a particular place here because it was to his home region.

NETTLE J:   Yes.

MR BURNSIDE:   But otherwise it is important for the decision‑maker to consider the circumstances to which he would be exposed in the place to which he might be returned.  That is the principle of relocation.  What they said is: 

under both Art 1A and the complementary protection regime, what is to be examined is the place to which a person will be returned, and what risks a person faces on return to that place.  At least one location within a country of nationality must be identified for this task to be undertaken.  Ascertaining a person’s former “home area” or “home region” may be an important step along the way –

They then refer to SZSCA which the Court has, as illustrating that:

once a decision‑maker has identified a region or place to which it is likely a person will return, an assessment of the risks a person might face on return to that place or region may, in some factual circumstances, require consideration of what is reasonable and practicable in terms of how that person will live and work in that place.

Then, there is reference to what your Honour Justice Gageler pointed out in SZSCA which the Court extracted earlier – paragraph 29.

GAGELER J:   What I said in the passage extracted at 29 really boils down to paragraph 41.

MR BURNSIDE:   Yes.  

GAGELER J:   Do you accept that to be the correct approach?  When I say paragraph 41, I mean at paragraph 29 of this judgment is paragraph 41.

MR BURNSIDE:   Yes, yes, paragraph 41 of SZSCA, yes.

GAGELER J:   Yes.  Do you accept that approach?

MR BURNSIDE:   Yes.  And, the Full Federal Court, yesterday, accepted that your articulation of the question at 41 was consistent with the majority view of the same question, albeit slightly differently expressed.

GAGELER J:   Yes.  And, do you say that those questions were not addressed by the Tribunal in this case?

MR BURNSIDE:   Yes, yes, we do.  If you look at the question of reasonableness in the Tribunal’s decision at paragraph 39, appeal book 187, the Tribunal said:

The Tribunal is satisfied that the applicant could reasonably be expected to establish himself elsewhere in Nepal and live a normal life without undue hardship.

Then goes on to refer to his three months in Baglang and in Kathmandu, without reference to the fact that he said, specifically, he was in hiding in those places – although, early in their reasons they had made a passing reference to that fact.

KIEFEL CJ:   Yes, they did at one point, did they not?  I suppose it also depends on what he means by “in hiding”.

MR BURNSIDE:   He gave evidence about that.

KIEFEL CJ:   He was not where he normally lives so, in a sense, he was in hiding. 

MR BURNSIDE:   He says that when he was in Kathmandu he hid in a hotel and in Baglang, he said he was hiding there as well.  He was not challenged on that and he was accepted as a witness of credibility.

KIEFEL CJ:   Does that mean he was not walking around the streets?  I mean, does it have that level of detail?

MR BURNSIDE:   It does not have that level of detail.  He said he was in hiding.  He was not challenged on it by members of the Tribunal.  So, I guess, you just take it as meaning what those words normally mean.  He was hiding in a hotel rather than being in public view.

KIEFEL CJ:   The Tribunal seems to have spent a fair bit of time, according to what the Tribunal has put to him and the questions – I am looking at paragraphs 17, 18, and 19.  It seems to have gone to some trouble to ascertain what his story was.

MR BURNSIDE:   That is true.  Paragraph 9 through to 22 is really a recitation of the claims he made and then, in 24, they accepted him as a credible witness.

KIEFEL CJ:   And you would not suggest that the Tribunal has to state every single point that he makes?

MR BURNSIDE:   No, but they have to take the points into account and if the question is:  is it reasonable for him to relocate anywhere in Nepal outside his home district, we would say the cases say yes, they have to consider that.  They have to see whether in a particular place it would be reasonable in the sense of practicable for him to relocate there, given the concerns that he had expressed about his limited qualifications, concerns for his family and so on.  But there is no trace of it.  And it is startling when the Tribunal turns from setting out the claims to setting out his reasons that they do not give any particular attention to any of his claims.

Now, I was going to turn to a question which Justice Nettle asked yesterday and the question was to the effect of what part of international law gives General Comments binding or persuasive force.  And I sidestepped that.  The answer is to be found, first of all, in the Vienna Convention on the Law of Treaties, to which both Australia and Nauru are parties.  And the relevant provisions of it are set out in an extremely useful article by Mechlem, which I will hand up, in the Vanderbilt Journal of Transnational Law.  The article is titled Treaty Bodies and the Interpretation of Human Rights.

The relevant provisions of the Vienna Convention are set out at footnote 9 on pages 910 to 911 and, not surprisingly, Article 31 provides that:

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

And, relevantly, at page 927, the author deals with general comments specifically.  In the second paragraph, on line 27, the author says:

General Comments interpret specific rights or deal with cross‑cutting issues.  They provide detailed content in a comprehensive and coherent way to the rather generally worded provisions of a human rights treaty, which is not possible when a treaty body comments on an individual state’s report.  Indeed, General Comments lend interpretive assistance to the decision of individual complaints.  General Comments can advance thought about a difficult matter, encourage debate about a treaty, and spread and deepen its relevance to the human rights movement.

On page 929, at the foot of the text:

Many commentators, however, accept that General Comments have considerable legal weight.  They suggest that a committee is the most authoritative interpreter of the treaty it monitors and that states parties are not free to disregard a treaty body’s interpretation with which they disagree, despite its nonbinding nature.

So plainly authoritative but in international law not very many things are binding.

KIEFEL CJ:   This relates to the internal relocation?

MR BURNSIDE:   The General Comments that we handed up relating to internal relocation, which were General Comment 20, General Comment 31.

KIEFEL CJ:   This should have been provided yesterday really, Mr Burnside, when this was all being argued.

MR BURNSIDE:   We only found this article overnight and found it in response to Justice Nettle’s question.

KIEFEL CJ:   Well, we might need to allow other parties to comment upon it.

MR BURNSIDE:  Yes.  We have provided a copy of the article to ‑ ‑ ‑

KIEFEL CJ:   I was thinking of Mr Kennett in particular.

MR ALEKSOV:    If I could assist, your Honour.  I have taken instructions.  The Republic does not wish to say anything in response to the article Mr Burnside has been referring to.

KIEFEL CJ:   That is helpful, thank you.  Yes, Mr Burnside.

MR BURNSIDE:   Thank you.  The other…..we might make is to General Comment 33, although it probably does not take matters any further.  Can I say that the Court will probably find it useful – I will not spend the time now – to read pages 925 to 930 of the article by Mechlem?

On a related point, there is the case of Ahmadou Sadio Diallo, which I think our learned friend has a copy of.  If I may provide a copy of that, it is a decision of the International Court of Justice.  We rely on only one page and I say that because it is relatively large.  We rely only on the first two paragraphs on page 664, where the International Court of Justice said:

Since it was created, the Human Rights Committee has built up a considerable body of interpretative case law, in particular through its findings in response to the individual communications which may be submitted to it in respect of States parties to the first Optional Protocol, and in the form of its “General Comments”.

Although the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty.

So, as authority for General Comments being persuasive, we rely on the article and on the decision of the International Court of Justice.

GAGELER J:   Mr Burnside, you have a General Comment which, read alone, might assist your argument and you have at least one case squarely against your argument.  Both of them emanate from the same body, the Human Rights Committee.

MR BURNSIDE:   Your Honour, yesterday, I think at transcript 30 to 31, the question of the order in which those things happened was raised.  Kindler, which used the expression “necessary and foreseeable”, was decided in 1993.  The case of ARJ, which also used that expression, equated “necessary and foreseeable” with “real risk”.  That was 1997.  General Comment 31, in which we relied on paragraph 12, uses only the expression “real risk”, and it was issued in 2004. 

GAGELER J:   But then in ‑ what was it, 2016 ‑ I forget the precise date – there was a determination of the Human Rights Committee in an adjudicatory context that squarely addressed a relocation principle.

NETTLE J:   B.L.

GAGELER J:   B.L.

MR BURNSIDE:   B.L, yes.  We would submit that the appropriate approach is to be guided by the General Comments rather than a particular case because the General Comments have the authority of a committee with special expertise in the particular treaty concerned and does not turn on the circumstances of a specific individual case.

GAGELER J:   Is there something in the article that you have just given us or the judgment that supports that relative weighting?

MR BURNSIDE:   The article, in the passage I cited from page 929, where, at the foot of the text at 929, it refers to commentators who suggest that a committee is the most authoritative interpreter of the treaty that it monitors.

GAGELER J:   We are accepting that, but the committee said two things:  one general, one specific, and it said the specific one later than the general one.

MR BURNSIDE:   Specific to the circumstances of a particular case.

GAGELER J:   Of the issue of relocation.

MR BURNSIDE:   But a specific case of internal relocation.

GAGELER J:   I accept that.  And you say that we discount that?

MR BURNSIDE:   Yes.

GAGELER J:   All right. 

MR BURNSIDE:   May I turn then to the second ground of appeal:  that the Tribunal failed to give an opportunity to deal with whether it was reasonable to relocate.  Clearly, these grounds overlap to a significant extent.  The appellant said in his evidence that I have referred to that he would not be safe anywhere in Nepal.  He said that at appeal book 35, paragraph 27, and also in his second statement, appeal book 113, at paragraph 72.  That was his statement made on 27 October 2014, in which he simply said:

I am at risk of harm throughout Nepal.  As a member and supporter of the RPPN, I will be persecuted by the Maoists throughout Nepal, including Kathmandu.

He was not challenged about that.  He was not challenged about relocation.  He was not given any opportunity to address the reasonableness of relocation to any particular place.  In circumstances where he has been accepted as a credible witness, it is astonishing that the Tribunal appears to have completely overlooked what they have accepted as credible evidence that he would be at the risk of harm throughout Nepal.  They did not turn their mind to whether or not it would have been reasonable for him to relocate to any particular part of Nepal.  They just said, pretty much, “Anywhere you like except your home district”.

That may have come from some apparent confusion about what relocation involved.  There was discussion of that in the Tribunal, where – I am sorry, I might have to come back to that; I seem to have lost the place.  It is at appeal book 165, yes.  At 165, starting at line 21, a member of the Tribunal said:

Okay.  I think we’re just about getting up to a natural justice brief.  Can you see our points that we’re looking at?  We’re looking at a very localised harm.

And Ms Palmer, who was appearing for him, said:

Is that on location?

Tribunal member:

So the harm is very localised that he has suffered – that he recognises the Maoists, they recognise him.  It’s a tiny place.  And so, it seems reasonable to be anywhere else other than in that particular village, especially given the changes of circumstances.

Another Tribunal member says:

be relocation?  Wouldn’t be a relocation issue because he has said he’s not going back to the village.

And then Ms McIntosh, Tribunal member:

That’s different.  Yes.  It may not be a question of relocation.

And then Ms Zelinka says:

That may be a semantic problem –

At the foot of the page, Ms Zelinka, Tribunal member:

[he] says I am not going back to that particular village because my house has been burned down and chooses another location, then we’re just racking our brains to see if that is the same test as relocation.  But you may as well look at it under that . . . but it does seems to be a localised fight with the participants knowing each other and so on.

Now, that is a very interesting passage because it seems – and you will notice that they adjourned for a short time ‑ ‑ ‑

KIEFEL CJ:   What is a natural justice break?

MR BURNSIDE:   Actually, I think the natural justice break is a bit later.  Yes, this was a comfort break, as they identified.  I am not sure what a natural justice break is intended to mean.

KIEFEL CJ:   I must look into it.

MR BURNSIDE:   Yes.

NETTLE J:   It is to have a think about it and respond to the Tribunal’s interest in the possibility of relocation.  That is what the natural justice break is for.

MR BURNSIDE:   Well, possibly, except that after that short break of seven minutes – and I am sorry, I was wrong a few minutes ago – the adjournment, which was the comfort break, was at page 151.  Initially, I thought that what was a comfort break had been converted to a natural justice break but apparently not.

NETTLE J:   But what is the point of all this?

MR BURNSIDE:   The point of all this is that the Tribunal was uncertain whether relocation was the question at issue, which is astounding, considering he had made it clear he could not go back because his house had been burnt down.

NETTLE J:   But it is semantic, is it not?  The question for the Tribunal was whether it was reasonable for him to re‑establish himself in a place other than the place in which he had previously lived.

MR BURNSIDE:   Yes, and that is what they did not explore.

NETTLE J:   But they did, they do it at paragraphs 38 and following of the reasons for the decision.

MR BURNSIDE:   Well, with respect, your Honour, they do not identify any particular place.  They just say, “Well, he would be okay, apart from in the local area”.

NETTLE J:   Yes.  The only place at which he is at harm is the local area.  They say, at the bottom of 38, he is sweet to go elsewhere.

MR BURNSIDE:   At the end of 38, they say:

there is no real chance of harm amounting to persecution befalling the applicant if he moved away from his home district ‑

That appears to overlook the fact that he remained in hiding when he was outside his home district and it appears to overlook the evidence, which was given at page 166, where his wife, it seems, had recently been identified by the Maoists and called into their office and asked for information about him.  That is at 166, starting at line 40.  And you will notice that the information about his wife was information that he got when he had telephone contact with his wife from Nauru, so it is fairly recent.

NETTLE J:   Is not the answer, at least which the Tribunal gives to that is, yes, there might be risk both to the man and to his wife in the local area, but there is no such risk because the Maoists are not active in other places in the country.

MR BURNSIDE:   They say that and, yet, it is inconsistent with the country information which was that the Maoists have seats in Parliament.

NETTLE J:   That was your submission yesterday.  I appreciate that. 

MR BURNSIDE:   Yes.

NETTLE J:   But, assume that is wrong for the purposes of this exercise.

MR BURNSIDE:   Then they question becomes, do they identify any particular place to which he could relocate and which would be reasonable for a person with his qualifications and his wife and child – his circumstances, generally.  That is just not touched on anywhere.

NETTLE J:   I must say that I think that it is, inasmuch as the Tribunal has said, it is reasonable for him to re‑establish himself elsewhere.  That is to say, any place other than where he was at risk where he used to live.  He has got the whole of the rest of country to which he can go.  That is what 39 says.

MR BURNSIDE:   That is what 39 says and, yet, in our submission, there is nothing in the reasons which show that they turn their mind to the need to examine the reasonableness on a basis of looking forward – the reasonableness of him relocating with his family to some particular place, given his particular circumstances. 

KIEFEL CJ:   Why does the Tribunal have to identify a specific place if it is the rest of the country, apart from a small part, in which he is not at danger?

MR BURNSIDE:   Because it is clear on the authorities that when relocation – internal relocation – is the question, then the decision‑maker has to consider a particular place and consider what might happen to the person, looking forward, if they relocate to that particular place and whether it would be reasonable in the sense of practicable for that person with his qualifications, his circumstances, to relocate to that specific place.

GAGELER J:   I suppose the question is, why does it have to be particular or specific?  Perhaps, in the context of deciding individual cases, that will be the inquiry, but why cannot it be anywhere but X – in principle?

MR BURNSIDE:   In principle, because that would overlook the realistic possibility that that person could not reasonably relocate.  Suppose the idea was that he and his family could relocate in Kathmandu.  When he was in Kathmandu before leaving Nepal, he remained in hiding.  He did have an encounter with some Maoists at one point while he was in Kathmandu.  He is a farmer by occupation.  I do not think there is any farming in Kathmandu but that would be a question for them to ask.  His only other skill is driving.  So, the question would have to be, if he relocated to Kathmandu, what work would he be able to do?

NETTLE J:   Paragraph 40 suggests they contemplated he might be driving, taking passengers on journeys and so forth.

MR BURNSIDE:   Yet there is no evidence whatever of what opportunities there are for people to take driving jobs in Kathmandu or nearby?  I really cannot put it much further than this, that the authorities make it clear that the decision‑maker, when considering internal relocation, has to consider the circumstance of the specific individual and consider what would be that individual’s fate looking forward if they relocated to a particular place.

There is not even a consideration of those circumstances looking at the whole of Nepal generally.  All the Tribunal said was he can relocate somewhere in Nepal as long as it is not where he comes from.  That does not pay attention at all to the integers of his claim for protection.  It does not consider at all the particular circumstance in which he finds himself.

The next point I want to turn to is our third ground that the Tribunal failed to deal with integers of his claim for complementary protection.  That also is a predictive exercise because the Tribunal, the decision‑maker, has to predict what would happen to that person if they were returned to some part of that country.  Really, at the risk of repeating myself, he gave evidence in both of his statements as to what would be the circumstances.  That is at appeal book 33 to 35 and appeal book 108 to 109.

NETTLE J:   That is the same thing as the previous point.

MR BURNSIDE:   It is the same thing, yes, in effect.

KIEFEL CJ:   Does that leave us with ground 5?

MR BURNSIDE:   Yes, it does.  Ground 5 stands in a separate position.  The concern is that the Tribunal erred in dealing with the question of Nepali citizenship and that ties in with the question of what risks there might be on his return. 

The evidence was that his son was being denied citizenship and the Tribunal asserted emphatically that women could not pass on Nepali citizenship; only men could.  The clearest instance of that is at appeal book 161 and at 160, through the interpreter, he had been complaining that his wife was telling him:

that she was denied to get citizenship . . . without my citizenship, it is difficult to get the children to go to school.

Apparently, according to his evidence, schooling is only available to citizens of Nepal.  Now, at 161, starting at the top, there is a discussion between members of the Tribunal and addressing, in part, the appellant.  Ms McIntosh says, at line 6:

Nepali women can’t pass on citizenship.

Through the interpreter, he said:

They will get the citizenship, but there should be one witness.

KIEFEL CJ:   Is it not more useful to go to the Tribunal’s reasons where they state what they find in relation to this issue, paragraph 20?

MR BURNSIDE:   They do, but it is important to see the way he was dealt with in the course of that hearing.  At line 15 on 161, Ms Zelinka said:

That’s a fact.  That’s the law.

Ms McIntosh said, two lines later:

Yes, well, it’s a fact.

MS ZELINKA:  Yes.  That is the law.  So the problem your wife is facing in trying to enrol your boy at school is the fact that both his father and his – and your father are both out of the country.

MS McINTOSH:  So what she needs to do ‑ ‑ ‑

KIEFEL CJ:   But the point that the Tribunal makes at paragraph 20 is not whether citizenship is available in the way you are putting it but, rather, that unless the father supports the application for securing citizenship papers it is extremely difficult.  That is the point that it makes to meet the point that his son is having difficulties going to school; it says, “it is because you are not there”.

MR BURNSIDE:   Yet the Tribunal failed to refer to material in the same‑country information which said that a child can gain citizenship either through the mother or through the father.

KIEFEL CJ:   That does not seem to be the point it is making in its reasons.  Surely that is what we are concerned with, not what was the course of discussion. 

MR BURNSIDE:   It is important to see the last sentence of paragraph 20:

“Securing citizenship papers for the child of Nepali parents, even when the mother possesses Nepali citizenship documents, was extremely difficult unless the father of the child supported the application.  This persisted despite a 2011 . . . decision to grant a child Nepali citizenship through the mother if the father was unknown or absent”.

KIEFEL CJ:   So the Tribunal knows that citizenship can be gained through the mother.

MR BURNSIDE:   Yes.

KIEFEL CJ:   The Supreme Court in Nepal has so held.

MR BURNSIDE:   Yes.

KIEFEL CJ:   But it is saying it is difficult if the father is not there to support the application to gain the papers.

MR BURNSIDE:   No, the Supreme Court decision was they can get it through the mother if the father was unknown or absent.  Well, he is clearly absent.  The problem with the attitude they took was that the ‑ further up in paragraph 20 in the fourth line:

That is, the applicant’s wife alone, even armed with her child’s birth certificate, cannot prove that the boy has a Nepali citizen father.  The case could be made out by the paternal grandfather –

and so on.  Skipping two lines ‑ ‑ ‑

KIEFEL CJ:   All of this is directed to the appellant’s assertion to the Tribunal to support his contention that the difficulty about securing citizenship for his son was because of his political opinion, and the Tribunal is saying that is not so.

MR BURNSIDE:   And it is an interesting question, what they failed to do was to notice that the law was to the opposite effect of what they had asserted so vigorously and they failed to give consideration to the possibility that the reason she was having trouble getting citizenship for the son was that it was the son of the father.  Now, if they had considered the implications of the father being the reason that citizenship was difficult for the child ‑ ‑ ‑

KIEFEL CJ:   They know that is the issue.  That is what they are saying at the first sentence of paragraph 20.  That is what they are addressing.  They are addressing his contention.

NETTLE J:   Might I add, Mr Burnside, they put it to him squarely at lines 42 and following at page 37 and he agreed.

MR BURNSIDE:   They put an assertion of law to him and ‑ ‑ ‑

NETTLE J:   No, they are talking about the conversation of which he has given evidence with his wife.

that the discussion between you and your wife has ‑ you know, the trying to talk over a long distance and so on.  The problem is school enrolment and the child needs his father or his grandfather to show Nepali citizenship.

Answer:

Yes, that’s correct.

And on it goes.

MR BURNSIDE:   Well, it is difficult to know what to put on that, given that it is evidence given through an interpreter about a matter of law at the end of a series of exchanges in which the Tribunal made it plain that they disagreed with his view of the law.  What they should have done was to genuinely take into account the possibility that the difficulty with getting the child citizenship was the result of the father’s political position.  But

they did not.  They said it is just the way the law is.  At the top of paragraph 20 they say:

The applicant seemed to be of the view that it was his political opinion, or some action of the Maoists, that was denying his son citizenship.  However, the Tribunal put it to him quite clearly that citizenship in Nepal can be established only with the active participation of the father.

There is nothing in the country information that suggests that.  In fact, the contrary is stated in the country information.  Now, the fact that that is the way it worked on the ground in his son’s case is something which the Tribunal should have taken into account but did not, should have taken into account in assessing whether or not he was the subject of discriminatory conduct and, if they had reached that position, then they would have had to look more carefully at whereabouts it would be reasonable in the sense of practicable for him to relocate.

I mean, on one view it may seem a strange thing to be concerned about whether or not the son can get schooling or can get citizenship in Nepal.  But, the implication of the law as it is in Nepal and the facts as they confront his son in Nepal, open the door quite plainly to a more detailed consideration about whether he would be safe anywhere in Nepal and, if so, where?  And, if some place is found where he would be safe, then would it be reasonable for him to go there with his particular circumstances?  That is why I say these other grounds – apart from ground 4 – all interrelate to a very large extent.  And, the last one does seem to stand separately and, yet, it has grave implications for all the others.  Unless there are other matters that I can help with, those are our submissions.  

KIEFEL CJ:   Yes, thank you, Mr Burnside.  Yes, Mr Aleksov.

MR ALEKSOV:   If it please the Court, your Honours, in relation to ground 1, it seems there is a minor dispute in relation to principle about relocation and we would not agree with our learned friends that the Tribunal must identify some particular place with any degree of specificity in the home country to which the applicant should locate.

Authorities, squarely, in support of our position – if I could just give your Honours the references without asking your Honours to go there?  The first is a case decided by Justice Gordon in this Court in the original jurisdiction – Plaintiff M196 [2015] HCATrans 240 at lines 402, and following – referring to Randhawa which your Honours will be well aware of – at page 443, especially points C and D on the page.

As your Honours will be well aware, it is settled law that the Tribunal does not need to make out an applicant’s case for them.  And, in relation to objections to relocation, the extent of the decision‑maker’s task is framed by the case sought to be made out by an applicant.  Also, it is not necessary to refer to every piece of evidence or go through a line‑by‑line refutation of what is put before a tribunal.

My learned friend took your Honours to the relevant item of evidence in relation to ground 1(a) and at appeal book 35, line 21, the submission we make about this point is that it was not a point directed to objecting to relocation.  The appellant’s objections to relocation were, in fact, made elsewhere and I have given your Honours those references in paragraph 3 of our oral outline.  I would not propose to take your Honours to them now.  The entirety of the case that the applicant made objecting to relocation was based on safety. 

In any event, in relation to ground 1(a) the supposed prejudice complained of arose entirely from the appellant’s own political affiliation and the Tribunal comprehensively dealt with that issue.  And the point not being developed any further it was not necessary for the Tribunal to deal with it in any specific way.

In relation to ground 1(b), further to what we have said in writing in our written submissions, your Honours, it is clear that the Tribunal did not overlook the applicant’s points in relation to being in hiding.  That is at reason 17, page 181 of the book.  We respectfully submit, your Honours, that the discussion that the Tribunal engages in at paragraph 17 refers back to the discussion at the hearing, appearing at pages 155, commencing at line 43, and going over to the foot of page 156, which concerns the incident where the appellant had seen Maoists whilst he was in Kathmandu.  That is where he made his claims to have been in hiding in the course of that discussion and the Tribunal is referring back to that discussion, so your Honours could safely infer that the Tribunal was aware of that evidence.

Further, the Tribunal found that the current situation in Nepal in areas other than his home region were safe and having regard to the limited nature of the geographical ‑ limited nature of the risk that he faced and it did so by reference to appropriate country information.  And we would cite paragraphs 26 through 32, paragraphs 34 and 37 through 38 of the reasons for that proposition.  And it led to a conclusion in relation to reasonableness that the appellant could live a normal life without undue hardship, and that is in reason 39.

It is not suggested by the appellant at any stage that the Tribunal contemplated the appellant may need to live in hiding in some other place.  That was not a part of the discussion.  And having regard to these matters, we say the better inference is that the Tribunal did consider this evidence but just simply did not think it was material to mention.  And your Honours are aware of the authorities on that topic.

Even if the Court was against us on that inference that the Court did not consider it, it still does not amount to legal error.  Your Honours will be aware that merely to ignore relevant material is not jurisdictional error in the Australian context and, as your Honours are aware, jurisdictional error is a certain kind of legal error.  Here, given the broader findings made about the current situation in Nepal and the ability for the appellant to live a normal life outside his home region, those particular points of evidence that Mr Burnside drew attention to could not possibly be serious enough to justify a conclusion of legal error.

Mr Burnside did not orally develop the point about paragraph 20 of appeal book 35, the second limb of ground 1(b) about freedom to express one’s political views and I do not propose to do so either.  In relation to ground 1(c), your Honours, at paragraph 12 of our oral outline, our response is that the Tribunal plainly did consider this evidence.

In relation to the new point, ground 1(d), we are not quite sure exactly how the appellants advanced this point because the Tribunal did not make any finding about whether or not the appellant’s wife would join him if he were to locate to a different place but, on either view, if she did so, well, given the Tribunal’s findings that he could live in another place, a normal life, without undue hardship, and all of his fears in relation to her safety, arose from his own political activities, the point is subsumed within that analysis.  We have made that point at paragraph 15 of our oral outline.

The alternative hypothesis, if she were not to relocate with him, any fears he held for her safety, just could not engage with the reasonableness of him relocating because that analysis or that activity would not affect her situation.  So, on either view, it does not demonstrate legal error.

In relation to ground 2, your Honours, in paragraph 19 of the oral outline, we have given you the pinpoints to where the appellant himself gave evidence on relocation and his agents made submissions on it.  He must have been aware of this issue and if he was not, it was clearly an obvious issue and to say that he was not challenged on the point, does not take the matter further.

I did not understand Mr Burnside to say anything different in relation to ground 3 but, in any event, paragraph 43 of the reasons answers that point.  In relation to ground 5, it is abundantly clear that paragraph 20 of the Tribunal’s reasons deals with the factual realities of obtaining

citizenship, not with the legal position of the point.  On no view could it be said that the Tribunal’s mind was closed to the appellant’s evidence, it squarely engaged with it, nor that he somehow did not obtain a fair hearing or that the Tribunal misunderstood the evidence which, your Honours, appears at appeal book 210.  Unless there was anything further that would assist the Court.

KIEFEL CJ:   Thank you Mr Aleksov.  Is there anything in reply, Mr Burnside?

MR BURNSIDE:   Just a couple of points.  I wonder if I may deal with this by reference to the respondent’s outline of oral argument.  Paragraph 2, they say it is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention in aid but, with respect, they have to think about it and there is no evidence in their reasons that they actually thought about the implications of the matters that he had put forward and which they believed.

Paragraph 5, our learned friend says that the Tribunal does not have to recast the appellant’s case.  That is not an issue here at all because the facts upon which he relied were put as showing that he was a refugee.  Those very same facts support an argument against the idea of internal relocation.  If it is found that he is not a refugee, then the question of internal relocation arises on the same facts and it is not a matter of recasting the case at all.

Going to paragraph 7b, our learned friend refers to the fact that the Tribunal held that he could live a normal life without undue hardship if he were to relocate but it overlooks the fact that he was in hiding when he was outside his home district.  It overlooks the fact and the implications of the fact that citizenship is apparently being denied to his son for reasons which are not supported by the law of the country and it overlooks the implication that ‑ the fact that he was hiding carries with it implications about the circumstance in which he found himself.

Finally, on our learned friend’s paragraph 22, he says that the passages cited do not indicate that the Tribunal closed its mind in relation to ground 5, but the Tribunal seemed to pay no attention to the fact that the law in relation to citizenship in Nepal was not being applied and that suggests other explanations for the problem, but they did not explore those other explanations.  If the Court please.

KIEFEL CJ:   The Court reserves its decision in each of DWN027 v Republic of Nauru, CRI026 v Republic of Nauru, and EMP144 v Republic of Nauru and adjourns until 10 am tomorrow.

AT 11.11 AM THE MATTER WAS ADJOURNED