Minister for Immigration v Abdi

[1999] HCATrans 287

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S50 of 1999

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

ABDULLAH SHEIKH MOHAMED ABDI

Respondent

Office of the Registry
  Sydney  No S66 of 1999

B e t w e e n -

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Applicant

and

HUSSEIN MOHAMED HAJI IBRAHIM

Respondent

Applications for special leave to appeal

GAUDRON ACJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 1999, AT 2.00 PM

Copyright in the High Court of Australia

_______________________

MR J. BASTEN, QC:   I appear for the Minister in both matters, if the Court pleases, with MS A.F. BACKMAN, in relation to the former and MR N.J. WILLILAMS in relation to the latter.  (instructed by the Australian Government Solicitor)

MR T.A. GAME, SC:   If the Court pleases, I appear for the respondent in each of the cases, with MR S.J. GAGELER.  (instructed by Kessels & Associates and instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

GAUDRON ACJ:   Can they be dealt with together?

MR BASTEN:   I think they can, your Honour, yes.

GAUDRON ACJ:   Could they be dealt with together on 20 minutes per side?

MR BASTEN:   I think so, your Honour.

GAUDRON ACJ:   Thank you.  Yes, Mr Basten.

MR BASTEN:   Your Honours, I will deal with the matter of Abdi first, if I may.  That raises a single issue.  It concerns a claim by a refugee applicant for a protection visa.  The claim arises out of the circumstances of the civil war in Somalia.  In relation to this matter, the Full Court declined to follow the approach adopted by the House of Lords in the matter of Adan and did so on a basis that there was no cause to impose a gloss on the words of the Convention.  That, we say, is an incorrect understanding of

the House of Lords approach.  We would invite this Court to reconsider the matter and affirm the approach adopted by the House of Lords in Adan as the correct approach under the Convention and therefore the correct approach in relation to the application of section 36 of the Migration Act in Australia.

Your Honours, at page 48, their Honours deals in paragraph 37 with the matter which I have just adverted to.  They say:

In approaching the question of persecution in the context of a civil war, it is important to keep firmly in mind the wording of the Convention definition.  The definition makes no reference to any different approach being adopted where the persecution exists in the context of civil war.  There is no exclusion.

And their Honours go on to refer the need to deal with the evidence, the harm or detriment, whether it is for a Convention reason, and then their Honours deal with two other matters to which I will come back.

May I take your Honours back to the passage – and I can do this, I think, without going to the materials – at pages 45 to 46 where their Honours deal with the relevant principles elucidated in the House of Lords, and perhaps first in page 46 at paragraph 30, middle of the page their Honours extract a passage from Lord Lloyd.  The opinion of Lord Lloyd is that in which all other members of the court agreed; Lord Slynn making a qualification.  What Lord Lloyd says in that passage, if one might read it quickly:

“He [counsel for the Secretary] accepts further that the persecution of individuals and groups, however large, because of their membership of a particular clan is very likely to be persecution for a Convention reason.  But he says that where there is a state of civil war between clans, the picture changes.  Otherwise the participants on both sides of the civil war would be entitled to protection under the Convention.  Indeed, ... the only persons who would not be entitled to protection on that view, would be those who were not the active participants on either side, but were, … lucklessly endangered on the sidelines.  …  It drives me to the conclusion that fighting between clans engaged in civil war is not what the framers of the Convention had in mind by the word persecution.

In other words, it is the concept of persecution which is at issue in this circumstance. 

Lord Slynn, whose speech is extracted higher up the page, approaches the matter on the same basis, we say, and if I might just take your Honours to the passage at lines 11 to 12:

In such a situation what the members of each group may have is a well founded fear not so much of persecution by other groups as of death, injury or loss of freedom due to the fighting between the groups.

In other words, the question is not one of connection to a Convention ground but whether the harm falls within the definition of “persecution” at all within the Convention.

The significance of this distinction between the approach adopted by the Full Court and the House of Lords appears, we say, at the top of page 47.  This is a passage which, in a sense, is the conclusion in the speech of Lord Lloyd where his Lordship says:

… the difficulty of establishing the facts does not undermine the principle that those engaged in civil war, are not, as such, entitled to the protection of the Convention so long as the civil war continues, even if the civil war is being fought on religious or racial grounds.”

In other words, grounds which are themselves Convention grounds.  At paragraph 32, the Full Court comments - - -

GAUDRON ACJ:   It is a fairly sweeping statement, is it not?  Is that what you say the law is?

MR BASTEN:   Yes, we say that the House - - -

GAUDRON ACJ:   “Even if the civil war is being fought on religious or racial grounds”?

MR BASTEN:   Yes.  In other words, there has to be a distinction – well, perhaps I take too briefly the passage to which his Honour refers.  If there is Convention-based discrimination within a civil war context then that may be the ground of a Convention claim.

CALLINAN J:   Such as executing prisoners?

MR BASTEN:   From a particular group?

CALLINAN J:   Merely because they are on the other side.  Why would that not be persecution?

MR BASTEN:   It would be persecution – well, whether it is persecution within the Convention is another question, your Honour.  It is obviously very serious harm.  It would not be persecution within the Convention if it were simply the carrying out of the civil war, albeit by - - -

GAUDRON ACJ:   Let us take a situation where there is a civil war and it is fought between two different groups in the community, the differences between them being differences of religion.  One side has decided, for example, say, the more numerous side in the civil war where government has broken down, that all members of a particular religious group are to be killed or it says, “All persons holding religious office should be killed”.

MR BASTEN:   Clearly within the Convention, we would say, your Honour, because in that case what is demonstrated is an intention to – well, it would be genocide if it were of race and that comes up in the other case.  There would be a finding that there was deliberate persecution of people on religious grounds and not simply an infliction of harm in the course of a civil war, that we would happily accept falls within the Convention.

GAUDRON ACJ:   And is that not what the Full Court was saying?

MR BASTEN:   No, we say not, your Honour.  Because they say what one – well, it is not entirely clear what they say because there is no doubt that in this case there is a clan-based war.  In other words, people are attacking each other on the basis of clan membership.  The clans are fighting.  So, on one view, everybody fears harm on the basis of their particular social group or ethnic group, namely, the clan.  Now, what the court says is that you have to look at the motivation for the war and you have to see whether it is possible to say that this war is being fought on the basis of a Convention ground or on the basis of a struggle for power or territory.

GAUDRON ACJ:   Did you not just accept that?

MR BASTEN:   No, your Honour.  I am sorry, no, no.  What we say is that there is a distinction.  A war does not preclude a claim for refugee status.  It may arise otherwise than as a result of fighting.  But nearly all wars are fought on grounds of either race, religion, political opinion or some such ‑ ‑ ‑

CALLINAN J:   Or territory.  What about territory?

MR BASTEN:   Usually to gain territory from another ethnic group or another social - - -

CALLINAN J:   Often exactly the same ethnic group.

MR BASTEN:   Well, it may be, your Honour, but - - -

CALLINAN J:   Quite a lot of Aryans fought Aryans in the Second World War.

MR BASTEN:   Yes, no doubt, but one would be able to formulate – yes, well that is an international conflict, I suppose, your Honour, but usually one can find some basis like political opinion, race or, very commonly, religion, which is the underlying basis of the war which is designed to gain power.

CALLINAN J:   Can I just ask you – sorry to interrupt, Mr Basten.  Other common law countries – is Canada or is the United States a signatory to this Convention?

MR BASTEN:   Yes.

CALLINAN J:   And is this provision being construed in those countries?

MR BASTEN:   The terms of the Convention in many cases, in the context of a civil war, in European countries, yes, your Honour, but I am not conscious of any superior court authority in Canada or the US which goes to this point.  There are some authorities which were dealt with, I think, in Applicant A in this Court which are relevant to the definition of a particular social group and that is often the means by which this issue comes before the Court.

CALLINAN J:   Yes.  I was thinking there was a shipping case in relation to the Hague Rules and this Court, I think, Chief Justice Mason said, without suggesting that other decisions bound the Court, that it was desirable in the case of international rules and conventions that there be a uniformity, so far as that was possible, in construction and application.

MR BASTEN:   That is certainly a matter we rely on in relation to the importance of the issue, your Honour, because we say a difference of opinion between the House of Lords and the Full Court of the Federal Court in relation to an international convention to which both countries are signatories is a matter of some concern and importance, and that is really the reason why this matter should be dealt with, we would say, at the highest level.              It is clear that the court is not following the House of Lords.  It is clear that it is adopting a different approach.

GAUDRON ACJ:   Where do you say that emerges?

MR BASTEN:   Your Honours, I think from – perhaps most clearly from - the approach which is adopted by the House of Lords appears in those passages at pages 46 to 47 to which I took your Honours.  The approach which is adopted by this court, the Full Federal Court, appears from a number of passages.  At page 47, at paragraph 32, their Honours say the:

extracts suggests that in the view of their Lordships, even if clan or race based persecution –

well, that is what we quibble with –

is established, the fact that it arises in the context of a civil war precludes those so targeted from Convention protection - - -

GAUDRON ACJ:   Well, you say that is what the House of Lords does not say.

MR BASTEN:   That is right.

GAUDRON ACJ:   Yes.

MR BASTEN:   I am trying to follow through the line.  Your Honour wants to say why they say it is different.  Your Honours, in paragraph 37, in the middle of page 48, they set up the definition as being the touchstone.  And then in the last sentence in paragraph 37, at lines 35 to 40:

This in turn calls for a consideration, so far as can be determined on the evidence, as to the purpose and nature of the war, the way it is conducted, and the objectives sought to be achieved by the war.

Now that, we say, is inconsistent with the passage at the top of the previous page.

GAUDRON ACJ:   But did you not concede to me earlier that all of those things might be necessary?  Let us say, it is not too difficult to imagine, a country occupied by Christians and non-Christians.  The Christians decide that the non-Christians should not have any say, burns their houses, et cetera; the government gives them no protection and then decides that the ministers or the priests of the non-Christian religion should be killed.  Would it not be correct to say that at least in that circumstance you do have to look to the purpose of nature of the war, the way it is conducted and the objectives sought to be achieved?

MR BASTEN:   Your Honour, that may well be so.  There may be some distinctions there.  Your Honour is presumably positing a civil war and not simply persecution of a small group.

GAUDRON ACJ:   No, civil war.  I would have thought, without - - -

MR BASTEN:   Where there is state protection, I think.

GAUDRON ACJ:   Well, let us say you have a situation where the state simply stands back and does nothing.  It is not difficult to imagine.

MR BASTEN:   No, that is so.  In this case, of course, there is no such state and we simply have warring clans and the question is whether all members of each clan are entitled to refugee status - - -

GAUDRON ACJ:   No, I do not think that is the question and I do not think the Full Court said it was.

MR BASTEN:   Well, it depends on what you mean when you say one needs to look at the motivation for the war because – might I just go on to the next paragraph.  They say:

In relation to Adan, we do not accept that a clan or race based war cannot, without some further and differential degree of risk, amount to persecution in the sense that –

and so on.

GAUDRON ACJ:   That is a different point, is it not?

MR BASTEN:   I am not sure that it is, your Honour, because if the point is that a race-based war, per se, will give rise to a claim for persecution, then the House of Lords says, “No”, and in Somalia it says “No”.  A clan is, as it were, an ethnic group or a particular social group, clearly a group that is covered by the Convention reasons.  The House of Lords says that is not sufficient but if that is the basis of the war, then one finds, according to the Full Court, that that is sufficient.  So, that is how they formulate the issue.  Might I take your Honours to page 50, at line 45:

Where a war is truly characterised as being clan based, then in our view the Convention requires that considerations must be given to the question whether the reasons for the war are to harm on the basis of race or clan or whether the struggle is in substance directed to control of resources or to the assertion of dominance over territory.

Now, that is not the test which is formulated in those passages in the House of Lords speeches and that is a test which we say is both inappropriate for that reason but also because it seems to be posited on the proposition that one can make this distinction, whereas it is clear that the Convention-based ground need not be the only ground of persecution under the Convention and, therefore, to make a distinction like this in circumstances where war will often involve a Convention ground, though perhaps it may not be the sole motivation, is inappropriate.  But we do say that that is a difference from the approach adopted by the House of Lords.

CALLINAN J:   That difference, I think, is pointed up on page 49, line 39, too, is it not?

MR BASTEN:   Yes, that is so, your Honour.  I do not understand that there is any – I did not read your Honours that passage but that is so.  There may be an issue as to whether or not - - -

GAUDRON ACJ:   Is that not directed, though, to something else?  Is that not directed to something that the Tribunal said about there needing to be a greater or differential risk?

MR BASTEN:   Yes, but that is a passage which is taken directly from the House of Lords judgment, your Honour.  There is no doubt that the Tribunal applied the House of Lords.  Your Honour, I note the time.

GAUDRON ACJ:   Yes, well there are two cases.

MR BASTEN:   I have now given myself too tight a framework probably.

GAUDRON ACJ:   Yes, we will extend the time within reason.

MR BASTEN:   Yes, certainly, your Honour.  I am just conscious of the fact that I said I would deal with both of them in the same period. 

GAUDRON ACJ:   There is a second point in Ibrahim, is there not?

MR BASTEN:   Yes, there is.  Might I just take your Honours to Ibrahim in order to consider that point.  The point is really raised in a passage at page 57 in the Full Court judgment at line 50.  We say, at about line 50, where the court said:

The Tribunal should have determined whether the particular experiences of the appellant were caused by persecution for Convention reasons, and in the light of those findings it should have considered whether at the time of the determination of the application there was a real chance (as that term has been explained in Chan) of the appellant being persecuted by reason of his membership of the Rahanwein clan –

is a picking up of a passage in your Honour Justice Gaudron’s judgment in 169 CLR 415 which appears in the materials at page 10, and elevating that passage into a principle of law – it is at point 5 on page 415:

If an applicant relies on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted.  If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say –

and so on.  Now, what their Honours have said – and we do not necessarily take any issue with whether that is a principle of law or fact because it was clearly a principle which other members of the Court applied on the facts of Chan’s Case.  Justice Gummow, I think in Eshetu, suggested that it was not the view of all members of the Court.  That is at paragraph 150 on page 19 of the materials.  Halfway through paragraph 150, his Honour says: 

The view of Gaudron J in Chan…..does not represent the view of the Court –

Now, there may be an issue about that and, if so, it is a matter which needs resolution but we would say that in any event the principle that your Honour was postulating, whilst it makes perfect sense in terms of a case of persecution by a state, does not make sense and need not have application in relation to persecution by third parties, in other words, not the state, and in circumstances where the Tribunal has made a finding that there has been fluctuating and shifting alliances and allegiances such that that sort of approach would not be appropriate.

The second point that arises in that same paragraph is that the Court appears to take issue with the reference to systematic conduct as being an appropriate mechanism for determining whether there has been a persecution.  This is linked, we say, with a difference in view of the Full Court and the House of Lords because it assumed that the war-related conducted could be persecution if the motivation for the war was established, and that appears from page 54, at line 20, a passage which I do not think I need take your Honours to in detail. 

If one looks at the Act itself, the approach of the Tribunal, which appears at page 19 of the book, at line 10, is entirely appropriate and we would say is a textbook application of the principles espoused by Justice McHugh in Chan.  The Tribunal said:

What emerges from all the evidence is a picture of the ordinary risks of clan warfare, largely involving struggles for power and resources, in a context of instability and anarchy.  Members of all clans and subclans in this tragic turmoil are at risk and, while some may be more vulnerable than others, none of the material before me points to circumstances which would convert the conflict into persecution.  I am unable to discern anything in the experiences of the Applicant, or his clan, the Rahanwein, or his sub-clan, the Dabarre, which could be regarded as part of a course of systematic conduct aimed at members of either group, including the Applicant, for reasons of their membership of the group.

And he rejects the argument that the war is being fought “to commit genocide”, at line 20, which is perhaps part of your Honour’s example earlier to which we take no exception.

What the Full Court does is to refer back in its reasons to its own judgment delivered at around this in relation to a related case of Hamad and, in particular, at page 46 of the materials, if I might briefly take your Honours to that, where they gave reasons for objecting to the use or finding an error of law by the Tribunal in the use of the word “systematic”.  Now, their Honours note what they say is an “often-quoted passage from the judgment of McHugh J”, and they set it out and they note the passage in Justice Wilcox in Murugasu to which reference was then made by Justice McHugh. 

What they do not do though, with respect, is to go to the rest of Justice McHugh’s exposition of principle which appears earlier on in the materials at pages 11 to 12.  What is quoted is the passage from the bottom of page 11.  The references may then be omitted though Murugasu is the last of them at the top of page 430 of the Commonwealth Law Report.  His Honour continues:

Nor is it a necessary element of “persecution” that the individual should be the victim of a series of acts.  A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” –

Now, that, we say, is precisely not only the terminology but the approach which was adopted by the Tribunal in the passage at page 19 to which I took your Honours.  The problem therefore is that what, in effect, has happened is that the Full Court has elevated the application of what one might describe as “a textbook statement of principle” into an error of law and that, we say, in itself constitutes a difficulty and it is one which is now apparent from three judgments of the Full Court referred to there, not simply Ibrahim but they refer back to Hamad which, in turn, relies on Abdalla.  This is the line of authority which, we respect, needs to be corrected.  Your Honours, that is the additional matter in relation to Ibrahim.

GAUDRON ACJ:   Thank you, Mr Basten.  Yes, Mr Game.

MR GAME:   If the Court pleases, we do not oppose special leave in Abdi.

GAUDRON ACJ:   You do not?

MR GAME:   No, and we accept that - - -

GAUDRON ACJ:   If it were granted in Abdi, why would it not be granted in Ibrahim? 

MR GAME:   That is a difficult question to answer, your Honour.

CALLINAN J:   Mr Game, when I spoke to Mr Basten, I had in mind a passage in Shipping Corporation of India Ltd v Gamlen Chemical Company 147 CLR, and at page 159 Justice Mason and Justice Wilson said:

It has been recognized that a national court, in the interests of uniformity, should construe rules formulated by an international convention –

and their Honours did say:

especially rules formulated for the purpose of governing international transactions…..unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation –

Not that I am suggesting we would be in any way bound by the House of Lords but it is obviously desirable that an attempt be made to reconcile, if possible, international rules of this kind.

MR GAME:   Your Honour, our position is that the passage that your Honour Justice Gaudron seized upon indicates clear error in the speech of Lord Lloyd in Adan and an examination of the judgment exposes that error but, in view of the considerations that your Honour Justice Callinan referred to, that in view of the fact that the Full Court of the Federal Court has declined to follow Adan, that it is necessary for this Court to consider the question, having regard to the fact that an international convention is under consideration and the desirability of achieving uniformity in common law countries in relation to interpretation of these provisions.  It is for those kind of reasons that we concede special leave in the case of Abdi but in no way conceding that Adan is correctly decided.

Perhaps I could come to this in a moment but we have some conditions that we would seek to have put on the grant of special leave and maybe I could leave those until I have said what I wanted to say about  Ibrahim.

GAUDRON ACJ:   Yes.  They may be agreed.

MR GAME:   I think there is one of them that is not agreed which is 1(a) on page 67.

GAUDRON ACJ:   Of which book?

MR GAME:   Of the Abdi book.  We have some transcripts from some other cases – of a special leave application where that condition has been imposed and if I could just hand to your Honours two of those transcripts.  They are actually stapled together.  In the case of Secretary, Department of Social Security v Lee, one sees at the bottom of page - - -

GAUDRON ACJ:   Apart from (c), that is the expedition which is not really for the parties to agree - that is a question of the Court’s business – are orders (a) and (b) at pages 67 and 68 opposed?

MR BASTEN:   Yes, the (a) is; (b) is not.  We have indicated we would give an undertaking in relation to (b).  It is the costs in the Federal Court ‑ ‑ ‑

GAUDRON ACJ:   It is not opposed but in reply you can tell us why we should not make the order, it being an order that has been made on many occasion, including in matters of this kind.

MR BASTEN:   I appreciate that, your Honour.

GAUDRON ACJ:   Mr Game, do not trouble yourself with - - -

MR GAME:   I will not trouble your Honours with that matter any further.  Now, you were asking me why we were opposing special leave in the other case.  There have been other instances over the years where cases come before the Court in a group raising special leave points, for example, warnings on confessions in New South Wales or remissions in South Australia, examples where in fact a spate of cases have come before the Court and the Court has not granted special leave in all of the cases simply because they raised the same point.  But having said that, what will happen to Mr Ibrahim’s case if special leave is not granted is that it will have to await the decision in Abdi. 

GAUDRON ACJ:   Is that not what is likely to happen in any event?

MR GAME:   If special leave is granted in Abdi but not in Ibrahim, then Mr Ibrahim will have to wait around to see what happens in Mr Abdi’s appeal.  So, to be quite frank, it does not make a great deal of difference to Mr Ibrahim’s position, ultimately, if his case is brought up before the Court but it is a matter for Court.  In our submission, it is really pointless to grant special leave in two cases that raise, in our submission, the same point.

GAUDRON ACJ:   Well, there is the additional point in Ibrahim.

MR GAME:   Yes.  Well, your Honour, the way I heard what Mr Basten had to say today, there were two additional points and in relation to the first, if I could say this – I have not put it on our list of authorities but in Chan all that the Court was doing was applying that well-known passage from Chief Justice Mason’s judgment in Chan at page 387.  If I could just read it very quickly:

In making such a determination under the Convention, a logical starting point in the examination of an application for refugee status would generally be the reasons which the applicant gave for leaving his country of nationality.  Those reasons will necessarily relate to an earlier time, since when circumstances may have changed.  But that does not deny the relevance of the facts as they existed at the time of departure to the determination of the question whether an applicant has a “fear of persecution” and whether that fear is “well-found”.

In our submission, that is all the Full Court has done in this case, referring back to what the applicant stated which appears at page 12 of the application book about why he feared returning to Somalia.  That, in our submission, addresses the second point.

In respect of the third point, in our submission, no question of principle arises.  If one looks at the judgment in Hamad which, in a particular extract at page 48, one sees at the middle of the page the error that Mr Basten is concerned might exist is clearly not made.  It can be seen in this sentence:

The elevation of “a course of systematic conduct” to a legal standard or determining criterion which must be met by those asserting persecution is, in our view, a fundamental legal error. 

In our submission, that is clearly correct and it indicates that all that, ultimately, Mr Basten is complaining about is whether the Full Court construed “systematic” as reasoned by the Tribunal one way or the other, it not being suggested that to construe it as habitual behaviour according to a system is in error, it being suggested that it is in error to construe it as deliberate or premeditated or intended conduct.

So, really, it comes down to how, as a matter of fact, the Full Court of the Federal Court construed what the Tribunal did.  Now, that, in our submission, is not a special leave point.

If one looks at the Full Court of the Federal Court’s decision in this case, once again one sees the very error that Mr Basten complains about is denied by the passage at the bottom of page 56, last sentence:

Where those words have been used to indicate a requirement that it is necessary to show a series of incidents or a course of conduct over time involving persecution, so that persecution will not be shown to exist if there is only an isolated incident, it will demonstrate an error of law on the part of the Tribunal.  Hamad is one case where such an error was demonstrated.

Now, in our submission, that is a complete answer to the submission which is put.  If one needs to go back to the Tribunal’s reasons, that is manifest enough from seeing what appears not merely at page 19 but at page 18 where the somewhat curious notion is introduced, and clearly erroneous, in our submission, in that passage beginning at line 30:

The totality of the material before me, including the Applicant’s evidence and the independent evidence referred to in this decision, leads me to conclude that the harm the Applicant fears is not persecution for reasons of his membership of the Rahanwein clan or his subclan of themselves but rather unsystematic warfare –

and the same appears, when it says:

These shifting allegiances are the consequence of power struggles between clans and subclans –

and then the next paragraph:

In this context of shifting allegiances it is difficult to identify any particular clan or subclan which can be regarded as being the victims of systematic persecution –

Well, it is hard to see how the Full Court could have concluded otherwise than what the Tribunal was looking for was an habitual behaviour according to a system when they spoke about “systematic persecution”.  In our submission, that is all that could mean.

So, in our submission, what we are left with in Ibrahim – and I am putting all this in a very summary way – is the same point of principle which is the Adan point and, in our submission, that point can be adequately addressed by the Court granting special leave in Abdi and not in Ibrahim.  As I said, it is ultimately a matter for the Court to decide what - - -

GAUDRON ACJ:   Thank you, Mr Game.  Mr Basten, unless you talk yourself out of it, we would be minded to grant special leave subject to the conditions to which Mr Game referred.  You may try to convince us that we should not take that course.

MR BASTEN:   I will not, your Honour.  We had indicated that the second and third conditions were ones which we were content with and I think we had said that in the summary of our argument.  In relation to the first, I have instructions to accept such a condition of special leave if that solves the problem.

GAUDRON ACJ:   Yes.  Well, special leave will be granted subject to – you are prepared to give an undertaking?

MR BASTEN:   I can give an undertaking.

GAUDRON ACJ:   - - - an undertaking that the applicant will meet the costs of the respondents in both cases in this Court and will not seek to disturb the costs orders made below.  I take it that both matters can proceed together.  When we are talking about the costs, we are really talking about one set of counsel for both parties. 

MR BASTEN:   Yes, your Honour.

GAUDRON ACJ:   I do not need to impose that condition, do I?  No.  Thank you.

MR BASTEN:   If the Court pleases.

AT 2.38 PM THE MATTER WAS CONCLUDED