Eshetu, Ex parte- Re Minister for Immig

[1998] HCATrans 399

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S104 of 1998

In the matter of -

An application for Writs of Prohibition  and Mandamus against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

PETER NYGH in his capacity as acting principal member of the REFUGEE REVIEW TRIBUNAL)

Second Respondent

Ex parte -

MOGES ESHETU

Prosecutor

Office of the Registry
  Sydney  No S26 of 1998

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

and

MOGES ESHETU

Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 NOVEMBER 1998, AT 3.27 PM

Copyright in the High Court of Australia

___________________

MR J. BASTEN, QC:   In the appeal, your Honours, I appear with MR R.T. BEECH-JONES, for the Minister appellant and I appear for the Minister as first respondent to the writ.  (instructed by the Australian Government Solicitor)

MR T.A. GAME, SC:   In the appeal, I appear for the respondent with my learned friends, MS E.A. WILKINS and MR G.P. CRADDOCK, and in the writ I appear for the prosecutor with MS E.A. WILKINS and MR G.P. CRADDOCK.  (instructed by Kessels & Associates)

GLEESON CJ:   Mr Game, does this reflect an agreement between the parties that we should hear argument in the order which takes the appeal first.

MR GAME:   Well, I think so.

MR BASTEN:   Yes, your Honour.

GLEESON CJ:   All right.

MR GAME:   Could I mention a matter though before ‑ ‑ ‑

GLEESON CJ:   Just before you do, Mr Game, there is a certificate to the effect that the Deputy Registrar has been informed by the Australian Government Solicitor, the solicitor for the second and third respondents, that the second and third respondents do

not intend to make any submissions to the Court and submit to any order of the Court save as to costs.

MR GAME:   Yes.  Could I, before my friend starts, mention a matter which has arisen from the course of argument this afternoon and it is this:  we lost our appeal, our application for review before Justice Hill.  We had an application before Justice Hill under the AD(JR) Act and under Part 8 and our AD(JR) case was rejected on the basis that section 485 basically precluded the relief under the AD(JR).  We also obtained a finding of Wednesbury unreasonableness from Justice Hill.  We also got an order dismissing the application which brings in, of course, the argument under section 481.

Now, if Part 8 goes in the proceedings in Abebe, then the AD(JR) stands.  We, at this moment, are the respondents to an appeal, that is to say, we are holding a judgment setting aside an order made by the Refugee Review Tribunal, but if we lose that judgment and if this Court decides that Part 8 is effectively unconstitutional, that is to say sections 475, 476, 481 and 485, then the natural consequence would be, in our submission, that we would be entitled, in effect, to go back to Justice Hill to have him determine the AD(JR) application which was dismissed because of the application of section 485.  Now, I am sorry that this matter has not been raised before, but it is really something that has only arisen in the course of submissions this afternoon.

GUMMOW J:   What do you want us to do about it?

MR GAME:   Well, your Honour, I should say that what I would propose is, and ask the Court for leave to do, would be in the appeal of our friends, of the Minister, that we be given leave to file a notice of contention.  A notice of ‑ ‑ ‑

KIRBY J:   Is it strictly a notice of contention?  Is not that seeking to sustain the order below on a different basis than that used by the decision maker?

MR GAME:   Yes, your Honour.

KIRBY J:   It may be a cross-appeal.

MR GAME:   Yes.  We would seek leave to cross‑appeal against the order by Justice Hill dismissing our application under the AD(JR) Act on the basis that it was precluded by section 485.

GLEESON CJ:   Mr Game, you have foreshadowed what you want to do and that is probably sufficient to put Mr Basten on notice.  You can come back tomorrow with a document that embodies the application you want to make.

MR GAME:   Yes.  The reason why I have foreshadowed it is so that both the Court and my friend understand what the nature of the direct practical outcome as we see it is in relation to what has occurred in Abebe in relation to our case.

GLEESON CJ:   Thank you.  Yes, Mr Basten.

MR BASTEN:   I do not wish to respond to that but merely to comment that what my friend comes back with might address the question of the scope of the writ as to whether he intends to pursue that in this Court.

MR GAME:   Yes, it may affect the scope of the writ, what happens in relation to that particular issue, because if ‑ ‑ ‑

GLEESON CJ:   You do not have to explain this to us now, you can deal with that in your document tomorrow.  Yes, Mr Basten.

MR BASTEN:   If your Honours please.  The appeal in this case raises a question as to the operation of sections 420 and 476 of the Migration Act and as to the nature of the review undertaken by the majority in the Full Federal Court in overturning the decision of Justice Hill who himself dismissed an application to review the decision of the Tribunal.

The matter concerns another application for refugee status by a citizen of Ethiopia.  The factual material I need not go into for the purposes of even, I think, the background to the appeal.  May I briefly take your Honours to the Tribunal decision which is at page 303 in volume 2 of the appeal book.  It is a lengthy decision which I will not take your Honours through.  From pages 304 through to pages 312 the Tribunal member sets out the background information she relies upon in relation to Ethiopia and the claims which are made by the applicant for a refugee status.

At pages 313 and following she then proceeds to undertake an assessment of the applicant’s claims and ultimately rejects his claim to be entitled to refugee status.  That is the basis upon which a review application was then brought to the Federal Court.  The substance of the issue before the Tribunal was whether or not Mr Eshutu’s central allegation in relation to his fate in Ethiopia prior to his departure was accepted.  He claimed that he had been arrested and detained with all members of the then student council of the university in Addis Ababa and had been badly treated by the police.  That was the basis, in substance, upon which he said that he feared persecution on the grounds of his political opinion should he be returned to Ethiopia at this time.

When the matter came before Justice Hill, as your Honours have been told, he rejected a basis for challenge under the AD(JR) Act.  He addressed a question under the Migration Act under section 476(1) and he identified at page 340 of the appeal papers at line 16 the issue.  He said at the top of the page:

It is agreed by the parties before me that a successful challenge to the Tribunal’s conclusion that the December 1991 incident did not occur would lead to the conclusion that the matter would have to be remitted…..It is also implicit in the submissions on behalf of the applicant that it is conceded that the only matter in contention before me concerns the December 1991 incident.

He then identified three matters essentially relied upon by the applicant.  He notes that there were three, at the bottom of page 345, and he identifies them at the top of page 346.

His Honour treats the first two matters and dismisses the allegations based upon them.  The third matter is that the Tribunal proceeded on the basis that it should reject evidence of an applicant unless some objective record was to be found in the reports before it, even if logic would have it that it was quite unlikely that no record would appear in those materials.  That was the central element of the claim.  The ultimate conclusion of the Tribunal on this question of primary fact was that she did not believe the claims made by the applicant because there was no objective evidence to support the proposition that the whole of the student council of the university was arrested in December 1991 and that there was every reason to believe that there would be some knowledge of that fact in independent sources if it had, indeed, occurred.

The other two matters, the question of the need for corroboration, are somewhat similar in their formulation.  The first is discussed at 354 to 356.  I will not take the Tribunal to it, although it may be raised against us that that is a basis for overturning the decision of the Tribunal.  Our submission in relation to that will be that Justice Hill’s approach to that matter was correct and was not seriously challenged before the Full Federal Court and should not excite the interest of this Court.

The second matter his Honour dealt with was the absence of a finding of credit, and at page 356 ,at line 25, his Honour says that there was no need for the Tribunal expressly to make a finding as to credit where it was clear that she had rejected some of the evidence of the applicant.

The logic of the Tribunal’s conclusion is addressed at pages 357 to 358 and it is this discussion which, as I understand it, forms the basis of Mr Game’s submission to your Honours a moment ago that there was a finding of the primary judge that there had been Wednesbury unreasonableness attending the decision of the Tribunal.  We would respectfully submit that that is not a finding of the sort which would involve any question of issue estoppel or otherwise.  That matter was not as he understood it before him and the comments that his Honour made have no more strength than those which were discounted in Wade v Burns when the Court considered mandamus would lie even though the magistrate had said that had he power, he would not have granted the relief sought, and in our respectful submission, the same approach may be addressed to these matters at 357 to 358.

The fact that the Tribunal’s conclusion lacks logic is a comment to which I will return in relation to the writ proceedings.  I do not intend to address it here, other than to note that Justice Whitlam, at pages 399 through to 452, took a different view.  Indeed, his Honour’s view at page 450, at line 40, was that the labelling of the Tribunal’s decision as unreasonable in a Wednesbury sense was wrong, and if the Tribunal had taken a contrary view, that conclusion, in his Honour’s view, would have been perverse.  We have perversity in opposite directions.

McHUGH J:   Two different approaches to the problem.

MR BASTEN:   Yes, resulting in a finding of perversity on the basis of a different conclusion, and perhaps if it does nothing more, it would be a salutary reminder to all of us as to the danger of reliance upon the ground of Wednesbury unreasonableness, but that does not arise on the appeal.  The substance of the matter, then, for the purposes of the appeal, is to be found in the judgment of Justice Davies, which commences at page 365 of the appeal book and his Honour says, at line 40 on page 365, that the appeal:

raises issues as to the application of s.420 and s.476 of the Migration Act –

His Honour then sets out those provisions and discusses a number of decisions in the Federal Court as to how those provisions operate, and I will come back to that matter, if I may, at a later stage.

The substance, however, of our challenge to what occurred in the Full Court – and I should say that Justice Burchett agreed with Justice Davies - his judgment is therefore that of the majority – is set out in the manner in which his Honour dealt with the facts, whatever his conclusion as to the appropriate legal principles.  He set out the factual matters as they were before the Tribunal in an extensive passage in his judgment, at pages 375 and following.  At the bottom of page 375, at line 35, he commences in 1991 when Mr Eshetu was a student and President Mengistu was still in power.  Line 35:  he noted that in May 1991, the then President fled.

His Honour then jumps in the next paragraph to an incident on the 4th of January 1993, at the bottom of page 375.  Then in the next page summarises what was the situation in Ethiopia, in general terms, over those two years.  But one comes back, at the bottom of page 376, to Mr Eshetu saying that he had commenced studies in October 1991, referring to the decision, at the bottom of the page, of the student council to organise a march on the US Embassy on 5 December 1991.  And at the top of page 377, his Honour notes the claim that members of the council all, except one Tigrayan who was suspected to be an informer, were arrested.

At the top of page 378, his Honour says:

It should be noted that there was nothing inherently improbable about Mr Eshetu’s story –

and that, with respect, is not a matter for his Honour to consider in these proceedings, but it is an approach which is then consistently adopted in the ensuing discussion.  And may I take your Honours to two passages ‑ ‑ ‑

KIRBY J:   Why is that not a foundation for considering Wednesbury unreasonableness?

MR BASTEN:   Because Wednesbury unreasonableness was not before his Honour.  On the assumption that his Honour made at – well, there was no challenge at that stage to the validity of 476(2).  Section 476(2) excludes Wednesbury unreasonableness, therefore, this was not a matter which his Honour was required to consider.  It may, of course, arise in relation to other proceedings in this Court.  He then looks at the material which was before the Tribunal and his Honour notes at the bottom of page 378:

The Tribunal rejected Mr Eshetu’s evidence, but not on the ground –

it is said –

that his demeanour showed him to be a person who was not telling the truth.

That, of course, would be relevant where the judge a member of a court of appeal, hearing an appeal against the evidence.  He then considers some further evidence which I will not take your Honours through.  At page 382 at line 25 his Honour says:

The question for the Tribunal was not whether 25 students including 11 member of the Student Council had all been arrested on 5 December 1991 and had all been beaten and tortured for three days.  The question for the Tribunal was whether Mr Eshetu had left Ethiopia because of fear of persecution for his political opinions, whether he feared to return to Ethiopia for that reason and whether those fears were well-founded.

The second sentence we accept is correct as a statement of the ultimate question before the Tribunal.  We respectfully submit that the Tribunal did not do other than address that question.  His Honour continued:

Neither in the Tribunal’s questioning of Mr Eshetu…..nor in the Tribunal’s lengthy reasons for decision did the Tribunal seriously enter into the question as to why Mr Eshetu had left Ethiopia, whether he had in fact been a student member of the University, whether he had suffered an injury to his foot and if so in what circumstances and whether he had gone into hiding, and if so why.

Now, his Honour comes back to that issue at the bottom of page 383:

it seems to me that, by failing to identify when Mr Eshetu’s “strong subjective fear” developed and by failing to make findings as to whether that fear developed whilst Mr Eshetu was in Ethiopia and whether it was because of that fear that Mr Eshetu left Ethiopia, the Tribunal failed to deal with crucial issues –

The top of page 384:

The Tribunal concluded that the detention and torture of 25 students had not been reported and was therefore implausible.  The tenor of the Tribunal’s examination thereafter concerned the identification of objectively proven facts, that is to say, facts proven otherwise than by Mr Eshetu’s evidence.  To approach the matter in that way was to apply a wrong test.  Fear is a subjective, not an objective, matter.  Although, for fear to be well-founded, there must be facts which establish that there is a real chance that the persecution feared would occur, the determination of the issue of “real chance” requires, first of all, an identification of the fear and of the circumstances in which it arose.  Yet, the Tribunal made no finding as to –

the matters his Honour had already identified.  Now, with respect, we say that what his Honour was doing in this case was to identify as necessary for the Tribunal to make findings about a number of primary facts which were inconsistent with the approach taken by the Tribunal.

GAUDRON J:   Or was he simply identifying the nature of the question and saying, in truth, that was not the question that was addressed, in which event you would have what, in conventional terms, is constructive failure of jurisdiction.

MR BASTEN:   Yes.

GAUDRON J:   Which may be excluded from the Federal Court by (3)(a) and (b).

MR BASTEN:   Yes, or 476(2) or (3).  Yes, that is so, your Honour.  Your Honour, what we say in relation to that is perhaps something that I adverted to this morning, namely, that that constructive failure would be constructive failure to consider one of the questions posed by the statute and the criteria under it and, in this case, that would be whether Mr Eshetu feared persecution on the ground of political opinion.

I will come back to the Tribunal’s decision but there is, we would respectfully submit, no doubt and no suggestion in the judgments that the Tribunal did not address that question.  It addressed it in a way which his Honour felt was unfounded and, at the top of page 385 he sets out what is perhaps his Honour’s ultimate conclusion in this case.  He says, having considered a matter I need not take your Honours to at the moment:

Mr Eshetu gave to the Tribunal a detailed individual story which, at least insofar as it affected him, was not inconsistent with known facts at the relevant time.  The Tribunal ought not to have rejected Mr Eshetu’s claim without coming to a view –

about those matters to which he had already adverted.  Now, with respect, what his Honour is putting up is an approach which the Tribunal might, if it had thought fit, have taken.  It could have addressed the manner in the way that his Honour suggests.  It was not bound to do it as a matter of law.

It was entitled to do what your Honour the Chief Justice mentioned yesterday, I think:  look to see whether in this difficult situation, on the basis of unsupported claims, there is any objective material which would suggest yes or no to the question, “Is this man’s claim truthful and based on factual material of which I can be satisfied?”  If it is, then no doubt the question is appropriately answered, but the Tribunal was not in error, we respectfully submit, in seeking to find support in objective, independent sources in circumstances where the Tribunal was entitled to say, “If these events occurred one would reasonably expect them to be reported” and on that basis what has happened is that the Court ‑ ‑ ‑

GAUDRON J:   Reported by whom?  I just wonder about that.  It would not be at all unusual in the case of a repressive regime for these matters not to be reported in the press so I am just wondering to what the Tribunal was referring and to what you are referring?

MR BASTEN:   Your Honour, under a repressive regime, perhaps such as the Mengistu regime, that might well have been true.

GAUDRON J:   Well, I am just wondering what is the validity for your statement that you ‑ ‑ ‑

MR BASTEN:   Well, can I come to the references in a moment, but we say that there was evidence before the Tribunal, firstly, that this regime tolerated demonstrations which did not turn violent, that there was, as she put it in one of the interviews, no reason to suppose that these members of the student council were incapable of putting their complaints to the media.  There was an open reportage in the media of events.  There was a Human Rights Council which took complaints which had been established in October 1991 and which produced annual reports of the misbehaviour in relation to these complaints of the government and, indeed, the Tribunal went so far as to take two steps to try and ascertain whether, despite the absence from any of the published materials of these events, there had been inside knowledge that they had occurred.

The Tribunal went to the President of the Human Rights Council, Mr Wolfemariam, and asked him a question as to whether the Council had heard of these events.  The Council, through Mr Wolfemariam said, “No, but it was still possible they had occurred”.  Another inquiry was made and there was no response to it, so the Tribunal took steps of it own volition to seek external corroboration which was missing from the published record.  It also inquired of an international aid agency which was independent of the Australian and of course the Ethiopian Governments and Community Aid Abroad as to whether it, through its officers and agents in Ethiopia, had heard of any such violation of human rights and it replied in the negative.  So, that whether or not this had occurred was an event which was undoubtedly at the centre of the inquiry which the Tribunal made, it made its own investigations, it looked at the material, it found no objective support and in those circumstances was entitled to say that it did not believe the applicant’s story and ‑ ‑ ‑

KIRBY J:   But in many oppressive regimes students are very low down on the pecking order of importance, and student leaders perhaps even lower, and the consequence may be that they are not the sort of people who hit the headlines.  It is the politicians or military or church or other people rather than just a few student agitators.  That might not merit attention.

MR BASTEN:   Yes.

McHUGH J:   But in this case it was said that these were the elite.

MR BASTEN:   Yes, these were the elite who were about to no doubt become part of the government or wished to do so in due course.  Your Honour, I suppose what one can say, and it is perhaps summarised in the final pages of Justice Whitlam’s judgment at 450 and following, that this was a country which had just emerged from a violent and destructive civil war in May 1991 and the institutions of government were not established.  There was no civil order, as we would know it, but there was a democratic – a government in the sense that it was a government of the sort which allowed freedom of speech and, to some extent, freedom of demonstration and the reports - and I can take your Honour through them in some little detail, if necessary, but there are numerous reports ;which are before the Tribunal and before this Court, in fact, which demonstrate that this was not a country under an established dictatorial regime.

It was, of course, a military regime because it had just won a civil war, but the suggestion that it suppressed all freedom of expression was not found by the Tribunal and was not a finding which followed as a matter of form from the material before it.  Much of the evidence that Mr Eshetu gave was, of course, apart from this very single incident in which he said he had been arrested, things that he had heard from others and as Justice Whitlam notes at line 42, on page 450:

I have read carefully too the transcripts of Mr Eshetu’s evidence and they reveal a conscientious and considerate treatment of a distressed man living in a world of emigres swirling with rumours about their native country –

and one, of course, would be sympathetic to that circumstance.  But the Tribunal was, as his Honour found, and we would respectfully submit that is a fair assertion of the situation.

Now, the second matter which I wanted to note was that there was extensive evidence taken both from Mr Eshetu and by reference to other material.  On the first occasion, 23 February 1995, the evidence is set out at pages 32 and following in volume 1 of the appeal papers.  Your Honours, I trespass to some extent I think on the next matter but at the bottom of page 58 the Tribunal member asked if there had been any further contact with people from the student council who had been imprisoned, as he said.  At the top of 59, the answer is “No, no, no”.  And then he is asked a further question.  He responds in relation to an incident in January 1993 and then in the middle of the page the Tribunal member identifies her concern squarely.  She says, in the middle of a long passage, at line 30:

But I have to say that I find it a little strange that none of these bodies and not the Ethiopia Human Rights Council which operates inside Ethiopia and to which I understand many people take complaints, I find it a little strange that the entire student council from the …(indistinct)… University could be detained for four days, that most of them had been and left the country and that four of them would have disappeared and that there would be no mention of this anywhere –

so that was an issue which was squarely identified and addressed.  And in the applicant’s own submissions it is clear that that was a matter which they accepted was at the heart of the concerns.

At page 262 in the second volume in a further submission put by the applicant at paragraph 2, the solicitor for the applicant notes that:

The Member’s questioning went to three significant issues which clearly gave rise to concerns about the applicant’s case –

infiltration of the military –

(ii)  his alleged arrest and detention in 1991 and the subsequent re‑arrest of four of the Student Council members some four days later –

Then at the bottom of that page the solicitor notes:

In relation to points (i) and (ii), these are matters that are primarily issues of credibility.  There is no written evidence that students attempted to infiltrate the military or that the members of the Student Council, including the applicant, were arrested…..The applicant’s credibility, therefore, is essential to any conclusion about whether or not these events in fact occurred.

With respect, that was the way in which the matter proceeded and it was after that that the Tribunal sought to obtain further information as to whether others had heard about the allegations which he had made.

Your Honours, in those circumstances, the matter came back before the Tribunal on 21 August 1995 and Mr Eshutu gave considerable further evidence which is set out at pages 71 and following of the appeal papers.  The date is wrongly recorded at the top of the page but the handwriting at the bottom is correct.  This was an interview on 21 August.  There was further discussion in the course of that interview with Mr Eshutu as to the material which he had placed before the Tribunal and the Tribunal’s material which it put to him at some length.  There was debate about whether or not it was likely that others would have heard of this matter.

Then at page 101 in the book, taking it slightly out of chronological order, is the applicant’s primary submission, not the further submission, I think, in relation to the matters then before the Tribunal.  The issues are set out on pages 102 to 103 at the bottom.  The submission is somewhat out of order.  The matter at lines 25 to 30 refers to a report of the Fifth Ethiopian Human Rights Council Report at page 13 as providing independent evidence for the activities which they say in that paragraph had occurred.  If one goes to that report, it is a reference to the activities of January 1993.  I merely note that to put that to one side.  The allegation in relation to 4 December 1991 is noted and that is the primary matter upon which the submissions depend.

May I then turn back to the way that the Tribunal dealt with this matter in its decision and, in particular, at pages 313 and following, and in substance the form or structure of the argument as it is set out by the Tribunal is the start with the paragraph summarising the conclusion and then to explain the basis of the conclusion so that at line 14, the Tribunal says:

I accept that Mr Eshetu has a strong subjective fear of returning to Ethiopia based on his conviction that the current government of Ethiopia is conducting a repressive campaign against its opponents in general and Amharas in particular.

With respect to the questions that Justice Davies wanted addressed, we respectfully say that at least two of those matters are the subject of particular findings, namely, that he had a subjective fear and the basis of his personal belief.  She then goes on:

I find the chance that he will face serious harm amounting to persecution either because he opposes the current government or because he is an Amhara to be remote.

Then in substance she goes back and identifies historically Mr Eshetu’s claims.  At line 25 she expresses doubts about his claim that the students had tried:

to infiltrate and takeover the Ethiopian military –

prior to the Mengistu regime’s collapse but, as she says at the end of that paragraph:

even if I accept Mr Eshetu volunteered to join the army in the dying days of the Mengistu regime, there is no evidence before the Tribunal which suggests that this would have any impact on his treatment on return to Ethiopia.

That was apparently dismissed as irrelevant.  There is then an assessment about the status of Ethiopia –

one of the poorest countries in the world –

had been the subject of a –

feudal monarchy –

and then a:

Marxist dictatorship –

until 28 May 1991.

Then on 314 at line 11:

In July 1991 –

the ruling government –

the EPDRF invited 27 political parties and ethnic organisations to attend a National Conference in Addis Ababa at which a National Charter established a multi-party Transitional Government to administer the country until a new constitution could be drafted and national elections held.  It was agreed that multi-party democracy should be established by January 1994 at the latest.

The July Congress also spelled out universal guarantees of human rights…..there were significant improvements in human rights following the takeover –

and she refers to US State Department Country Reports in support of that proposition.  At lines 35-40:

The US Human Rights Report for 1992 states that “people spoke freely in 1992”, that “popular demonstrations became routine around the country, including those protesting TG policies” and that “there was a proliferation of political organisations…..from a wide spectrum of political opinions”.

Now, I will not take your Honours through all of this material.  It is not consistent with a picture of a country which was still at that stage under the iron grip of a Marxist dictator or of a military machine.  Your Honours, there obviously are references – at the top of 315, for example, to “inter‑ethnic violence”, “militias from different groups” continuing to clash and resulting in deaths.  This is not a country which is a safe and prosperous place even after the Mengistu government had fled.  Then at page 316 in an important passage at line 20 the Tribunal member noted:

As noted above, members of groups involved in continuing conflict…..were also detained…..the reports available to the Tribunal mention only one incident in which opponents of the government were detained for a prolonged period in Addis Ababa during the first year of the TG.  Three leaders of the National Democratic Union who were detained following a legal demonstration which turned violent…..The EPRLF guards did not respond with force, but the leaders of the group were subsequently detained, apparently because, in accordance with provisions on their demonstration permit, they were held responsible for the behaviour of the demonstrators.

…..it is clear that widespread crime and ethnic violence continued…..However, the evidence does not suggest that those who criticised or demonstrated peacefully against the government in Addis Ababa were generally at risk of detention or serious harm.  On the contrary, the evidence suggests that individuals and groups were able to speak out against the government and many demonstrations were held without the participants experiencing serious problems.  Of course, this does not mean that the possibility that some people were detained for planning or involvement in peaceful anti‑government demonstrations can be completely discounted and I would not have rejected Mr Eshetu’s claims regarding his alleged detention in December 1991 merely because it appeared to be an uncommon occurrence at the time.  However, after considering the evidence before the Tribunal on the period in question, I do not accept his claim that such occurrences were common or that the EPRDF suppressed all opposition to its rule during the period he remained in Ethiopia.

She then says:

I do not accept that Mr Eshetu and another 25 students, including all but one of the members of the Student Council from the University of Addis Ababa, were detained and tortured for three days for planning a demonstration –

First, we note there that there is implicit in that acceptance of his evidence that he was a student at the university, and that he was a member of the council, or at least sufficiently active to have been one of those allegedly detained.  She does not suggest otherwise.  She then goes on to explain how she came to that conclusion and, in substance, the analysis is summarised at page 317, at line 12:

While I acknowledge that not all detentions or other human rights abuses will be mentioned in human rights reports or other published materials, for the reasons set out below, I consider that the detention and torture of 25 students, including all but one of the members of the Student Council in Addis Ababa –

that is the capital -

in December 1991 would have been known to at least some of those monitoring the human rights situation and would have been reported –

One may agree or disagree with that conclusion.  With respect, it shows no error of law in the approach being taken to the central issue in the case, which ultimately was whether or not this man had been arrested, and therefore had continuing, well-founded fears.  And again, one goes to page 318, at line 31:

I do not accept that a large number of Mr Eshetu’s friends and colleagues from university –

again accepting that he was at the university -

have been detained, disappeared or killed since his departure from Ethiopia because of their political view or activities.

And she notes he was unable to provide any specific information on the fate of these people, and there was no information otherwise available.  The Tribunal then goes on at pages 319 through to 321, to consider in some detail what happens now in terms of opposition to the current government, and this is putting into a more recent context, questions which would, of course, arise if she were satisfied that there was some basis for fear in 1991, namely, would that fear still be maintained in the situation in Ethiopia, which has developed?  I need not take your Honours through that material.

At pages 323 to 324 she then turns to various issues raised by the solicitor for the applicant concerning the information – I am sorry, I am at the bottom of page 322 – obtained from the Department of Foreign Affairs, Community Aid Abroad and the US Department of State.  Those objections are set out and analysed.  There was in this case – and I hope I do not need to take your Honours to it – a rather unseemly debate between Amnesty International and CAA as to who was right and who was wrong in their assessments, but those were all matters which were the subject of objection and discussion.  The reports were given to the applicant for consideration and points were made and she assessed the comments which were made and noted, for example, at the top of page 324 that the founding Secretary‑General of the Ethiopian Human Rights Commission was someone upon whom she was prepared to rely in so far as he provided specific information.

Information received from DFAT after EHRC was approached for information indicates that the reliability of their human rights reports has been questioned because they do not operate as independent, objective observers of the situation in Ethiopia, adopt a more partisan approach in support of Amharas in general and the AAPO in particular.

Nothing specific is rejected at that stage but she bears in mind the bias which she believes must be taken into account in considering their comments.

Your Honours, that is all really material which is in support of the conclusion which she had previously announced, namely, that there was no basis for his fear of persecution set out at page 319, line 10.  Pages 319 to 322 specifically address the concern as to what will happen in the future, a matter to which I think your Honour Justice Gaudron drew attention earlier.  I merely note it because it is relevant material.  I do not seek to take the Court through it.  Against that background one asks why the Tribunal was not as a matter of law addressing the question which it was statutorily mandated to address.  If it was addressing that question, why was its approach not open to it?  If its approach to deal with the primary facts and find primary facts was available, then no error of law under the Act has been established.

Your Honours, I need to come back to the question of the interpretation we put upon the relevant provisions of section 476, particularly 476(1)(e), in the light of the common law provisions.  I do not think that will take me long and it is partly relevant to the writ application.

But, we do take the view that section 476(1)(e) is specific in a way which is important in a matter which considers how the error of law ground operates under this legislation.  The AD(JR) Act to which reference was made earlier today identifies the ground of error of law in a way which is more abrupt and perhaps broader.  It refers, as does 476(1)(e):

that the decision involved an error of law –

and then picks up the final phraseology:

whether or not the error appears on the record of the decision –

What has been added in this Act, is being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found and what I would like to do - and it may not be appropriate to do it at this stage - is to take your Honours back to Bond’s Case where that is one of the possibilities, the possible understandings of the common law which his Honour rejects under the AD(JR) Act finding that a broader approach is required.  We say that his Honour’s alternative approach is the one which has been adopted in this legislation and therefore there may be a more limited ground of review under this provision than there would have been under the AD(JR) Act or under section 39B.

GLEESON CJ:   Is that a convenient time?

MR BASTEN:   That is a convenient time.

GLEESON CJ:   We will adjourn until 10.15 in the morning.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 13 NOVEMBER 1998