Minister or Immigration and Border Protection v WZAPN & Anor; WZARV v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 80

[2015] HCATrans 080

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M17 of 2015

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Appellant

and

WZAPN

First Respondent

GRAHAM BARTER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

Office of the Registry
  Perth  No P10 of 2015

B e t w e e n -

WZARV

Appellant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMOGEN SELLEY IN HER CAPACITY AS THE INDEPENDENT MERITS REVIEWER

Second Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 APRIL 2015, AT 10.04 AM

Copyright in the High Court of Australia

____________________

MR S.P. DONAGHUE, QC:   May it please the Court, I appear with my learned friend, MR L.T. BROWN, for the appellant in the first of those matters, and the first respondent in the second.  (instructed by Australian Government Solicitor)

MR R.M. NIALL, QC:   May it please the Court, I appear for the first respondent in the first of those matters with my learned friend, MR A.F. SOLOMON-BRIDGE.  (instructed by Maddocks)

MR S.E.J. PRINCE:   May it please the Court, I appear with my learned friend, MR P.W. BODISCO, for the appellant in the second matter.  (instructed by Rasan T Selliah and Associates)

FRENCH CJ:   I note there is a submitting appearance for the second respondent in each matter.  Yes, Mr Donaghue.

MR DONAGHUE:   Your Honours, the central question raised in both of these appeals concerns the relationship between a well‑founded fear of being detained and a well‑founded fear of being persecuted within the meaning of Article 1A of the Refugees Convention.  The question is whether Justice North in WZAPN erred in finding that it is impermissible for a decision‑maker to undertake what his Honour called “a qualitative assessment of the nature and degree of harm” when deciding whether detention involves serious harm and therefore crosses the threshold, or rises to the level of persecution. 

Another way of putting that issue is, is it a jurisdictional error for a decision‑maker to consider matters such as the frequency of detention, or the length of detention, or conditions in detention in deciding whether detention, which is accepted will occur, constitutes persecution.

In WZAPN, Justice North held that the effect of section 91R(2)(a) of the Act was that any detention involves a threat to liberty within the meaning of that provision, and therefore that if a person has a well‑founded fear of being detained at all for a Convention reason, then that person is necessarily a refugee.  The Minister has been unable to locate any authority anywhere in the world that would support an approach of that breadth.

Your Honours may be aware that the Full Court of the Federal Court has recently considered the correctness of Justice North’s reasoning in WZAPN.  It did so in three appeals that were all heard at the same time, and in which judgment was delivered on the same day, and substantially the same reasons were given by the court in each matter.  There were variations depending on the facts, but the substantial reasoning was the same.

The parties here have referred to the first of those appeals, which is SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39. Your Honours do not need to go to that case now but the effect of it was that after hearing arguments that exactly track the arguments that the Minister advances in this appeal, the Full Federal Court held that WZAPN was wrongly decided and it did so after analysing the text of 91R, the context, the history and extrinsic material around that provision, authority, both in Australia and overseas, and academic writings on the point.

So, the Minister’s essential submission in this appeal boils down to the proposition that SZTEQ was correctly decided.  Accordingly, the position now is somewhat different than it was at the position when the Minister sought special leave to appeal in this matter where the prevailing position in the Federal Court was Justice North’s judgment which the Minister sought to overturn.  We now submit that the law is accurately stated by the Federal Court decisions on the point.

GAGELER J:   Mr Donaghue, did any of the three Federal Court decisions deal with a fear of detention by a non‑state actor not pursuant to the law of a foreign state?

MR DONAGHUE:   I think the answer to that question is no, but I will check, your Honour.  Your Honours have our written outline and the first point that we note in the written outline is that section 91R of the Act is about to be repealed, although it is being re‑enacted in a different part of the Act.  Just so your Honours understand the legal context within which the judgment might be given, if I could briefly take your Honours through the effect of that amendment.  It is not directly relevant to the appeals but the position is that there is a provision which your Honours will find – you should, I hope, have a bundle marked “Appellant’s Additional Authorities” which is a tabbed volume with six tabs in it.  In that volume, behind tab 1, you will see that there is an extract from the Migration and MaritimePowers Legislation Amendment (Resolving the Asylum Legacy Caseload)Act 2014.

What we have reproduced there is Part 2 of Schedule 5 of the Act.  That part is specified in section 2 of the Act, which we have not given your Honours, but section 2 of the Act says that Part 2 of Schedule 5 commences on a date to be fixed by proclamation or a date six months from Royal Assent.  My instructions are that the proclamation date is 18 April, so about three or four days from now.

FRENCH CJ:   The proclamation has been made and fixed at that date?

MR DONAGHUE:   That is what I am told, your Honours.  So, very shortly, item 12, which your Honours will see on page 111, will commence the effect of which is to repeal section 91R.  That does not, in our submission, deprive the issue of significance for this reason.  If your Honours turn back to page 106 you will see that at the same time as 91R is repealed there will be some new provisions inserted.  At item 4 you will see new definitions of “refugee” which has the meaning given by section 5H and “well‑founded fear of persecution” which has the meaning given by 5J.  In 5H(1)(a) part of the meaning of “refugee” is that a person is:

(a)in a case where the person has a nationality‑is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)in a case where the person does not have a nationality –

it is the same thing.  So Article 1A is the language – familiar language is reflected there, using the defined term “well‑founded fear of persecution”.  If your Honours then go over the page to 5J(1):

For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:

(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)       there is a real chance –

so it picks up the Chan test.  But importantly for our purposes, if your Honours then turn over to page 108, subsections (4) and (5), you will see that those two provisions reflect substantially the language of 91R(1) and (2).  The language particularly of the introductory provisions is not identical because there is no reference to the Refugees Convention any more, but in substance the question about the significance of there being a threat to liberty that arises under (5)(a) of the new provision is the same as the question that arises under 91R.

We have given your Honours behind tab 3 the relevant part of the explanatory memorandum relating to those provisions.  I do not know that I need to take your Honours – well, I will take your Honours briefly to it, if you could turn to tab 3, just by way of explanation of what was happening here.  On page 10 of the explanatory memorandum, which is the first page we have reproduced, the second paragraph refers to the Bill removing references to the Refugees Convention from the Act and creating:

a new, independent and self‑contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention.  It is not the intention of the Government to resile from Australia’s protection obligations under the Refugees Convention but rather to codify Australia’s interpretation of these obligations within certain sections of the Migration Act.

Then, over the page at 174 to 175, particularly paragraphs 1196 and 1198, you will see that what is said is that these provisions – “move” is the word that is used – move the current 91R to the new 5J, and then in paragraph 1198, from the third line, it is said:

This amendment is therefore not intended to change the meaning of current subsection 91R(1).

There are equivalent paragraphs at 1201 and 1203 in respect of subsection (2).  So in both cases it is said the provisions have been moved and that there was no intention to change their meaning.  So for that reason, we submit that the matter still has public importance, although we also submit that the decision of the Full Federal Court to which I have already referred would apply equally to the new framework as it does to the old.

Your Honours, can I move then to briefly introduce the relevant factual findings upon which the legal issues arise in both of the two matters, starting with WZAPN.  If your Honours have the appeal book in that matter and turn to page 125 – sorry, your Honours, I think I have given you the wrong reference there.  Turn to page 11, which is also numbered 125 in the bottom right‑hand corner but 11 in the middle bottom of the page.  Your Honours will see – this is in the section of the Independent Merits Reviewer’s findings and reasons.  Under the heading “Credibility”, the independent reviewer explains the view that he took of the credibility and at paragraph 38 you will see it is said that the respondent:

did not give his evidence in a forthright manner.  He was evasive and his evidence lacked detail.  He did not answer ‑ ‑ ‑

FRENCH CJ:   Well, does anything matter other than 42?

MR DONAGHUE:   Well, it is really from 38 to 42, it said, effectively, I give him the benefit of the doubt:

generally accept . . . evidence –

except that it was ‑

prone to hyperbole.

I only mention that, your Honour, because while the evidence was generally accepted, the finding which we submit is the key platform from which the legal issue arises, is not exactly the same as the claims that were made.  So, my submission is that your Honours should be focusing on what the IMR found at paragraphs 81 to 84, not upon the claims which were expressed in slightly wider terms.

So, moving to paragraph 64 in the independent reviewer’s reasons on page 14 of the appeal book, your Honours will see there that the reviewer broke up the claims into four paragraphs and the structure of the reasons is that the reviewer deals with them in groups.  So, paragraph (a) is dealt with at 65 through to 78.  Paragraph (b) is the paragraph your Honours are concerned with.  So, the claim was that the respondent:

has been detained by the Basiji and police from time to time, once for 48 hours but on other occasions for no more than twelve hours.  He is usually detained for relatively brief periods of time and he has never been physically assaulted, although he has suffered extreme verbal abuse.

The findings about that claim are from paragraph 79 and following.  The point is made at the end of paragraph 79 that:

it is clear from his evidence that the essential and significant reason for his detention has been his inability to provide identification when called upon to do so.

Then the finding at 80 and 81 is first an acceptance that the respondent:

has been stopped and questioned many times and that he has from time to time been detained –

so there is an acceptance of past attention.  No suggestion of physical abuse:

not had his life threatened or been kept in detention for more than 48 hours. 

Then in 81:

Having regard to the extent of enquiries by the police, the Basij and other de‑facto law enforcement agencies revealed by Country Information, particularly since the 2009 elections –

and this is the key finding ‑

I accept there is a real chance that the claimant will be questioned periodically, and probably detained for short periods when he fails to produce identification, in the reasonably foreseeable future should he return to Iran, but having regard to the guidance provided by s.91R . . . I do not accept that the frequency or length of detention, or the treatment he will receive whilst in detention will involve serious harm within the meaning of the Act.

Essentially, what Justice North found was that that was a jurisdictional error.  That paragraph – the reasoning in that paragraph reflects a jurisdictional error because it was wrong to have regard to the frequency and length of detention and treatment that would be received and that the finding that there was a real chance of detention for short periods should, in itself, have been enough to establish that the respondent was a refugee.

I will need to come back in respect of the procedural fairness issue to paragraphs 82 to 84 but if I could defer looking at those paragraphs for now because they are not relevant to the serious harm issue.  The submission that we make about paragraph 81, and we appear to join issue with the respondents on this, is that the respondents submit to your Honours in their written submissions that paragraph 81 involves a finding that there is a threat to liberty.  They say your Honours should read that paragraph as a finding of a threat to liberty.  In our submission, that cannot be the correct reading of the paragraph. 

What that is a finding of is that there is a real chance of detention, but the IMR’s reference to 91R(2)(a), (b) and (c) denies that the IMR thought here that a finding was being made that there was a threat to liberty because, as your Honours will see when I come to the Act in a moment, if there was a threat to liberty the Act says there is serious harm.  So, the IMR cannot have thought there was a threat to liberty in making the finding from this paragraph or, indeed, the paragraph would be contradictory.

So we submit, in effect, that our friends make the error, which we submit Justice North also made, of equating a real chance of detention with a threat to liberty.  Those concepts are not the same and once it is recognised that they are not the same, in our submission, the reasoning upon which Justice North’s judgment depends falls.  Just to show your Honours how Justice North dealt with that before I come to the facts in WZARV, if your Honours could turn to his Honour’s reasons which commence at 207 of the appeal book and turn first to page 220.  At the top of page 220, paragraph 28, you will see his Honour said:

The starting point for the consideration of the proper approach to the construction of s 91R(2) is the text of the subsection.

We make this point about that as a starting point.  It is too narrow.  The starting point, obviously, is the text of the relevant provisions, but it is not correct, in our submission, to go straight to subsection (2) because that subsection takes its place in a framework that critically depends on section 36 and section 91R before you get to 91(2).  Our submission may be that his Honour fell into error by focusing too much on the specific provision without adequately accounting for the place it takes in the statutory scheme, a submission I will develop in a moment.  Then your Honours will see at paragraph 30, basically having looked at the text of subsection (2), his Honour says:

The conclusion from the language and structure of s 91R(2) is that serious harm in s 91R(1)(b) is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty.

His Honour then, from 31 through to 42, supports that conclusion by reference to the proposition in paragraph 31 that:

the construction which accords with Australia’s obligations under the Convention should be favoured –

Analytically, the Minister supports that approach.  It is correct, in our submission, that a construction that accords with the meaning of the Convention should, if open, be favoured.  We submit, however, that his Honour drew the wrong conclusion from the international and domestic material to which he referred and so that method, when properly applied, in our submission, does not support the conclusion his Honour reached.  That conclusion, your Honours will see at 44 and 45 on page 224, where his Honour says:

In taking the human rights approach, there is no place for a qualitative assessment of detention affecting the right to liberty for it to constitute an infringement of that right.

By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test . . . and thereby fell into jurisdictional error.

FRENCH CJ:   Do you say that 91R(2) in its relevant application is declaratory?

MR DONAGHUE:   Of the Convention?

FRENCH CJ:   Yes.

MR DONAGHUE:   Yes.  It reflects what Parliament understood to be Australia’s obligations under the Convention.

FRENCH CJ:   The purpose is declaratory.

MR DONAGHUE:   Yes, to declare the true meaning of the Convention.  That is the way Justice North approached the findings.  Could I ask your Honours then to turn briefly to the facts of the other case, WZARV?  In this matter, your Honours will find the relevant part of the IMR’s reasons - the finding and the reasons analysis commences at page 42.  Your Honours, however, do not really need to trouble yourselves with most of this fact finding, because if you turn to page 46 from paragraph 198 and following, particularly through to 202 at the bottom of the next page, there are a series of findings rejecting the claimant’s evidence.

His claims were described variously as inconsistent, incoherent, ultimately implausible at 198.  At 199 other claims are said to be untruthful and rejected completely.  At 200 further claims are rejected as untruthful – 201.  But in effect the detailed claims were rejected and are no longer in issue on this appeal.  What is important is the reasoning from the top of page 48 where the reviewer recognises that, notwithstanding the rejection of past claims:

The issue now before me is whether the claimant faces a real risk of serious harm if he were to return to Sri Lanka in the foreseeable future, being a person of Tamil ethnicity –

and effectively you see what was accepted of the various claims there –

having paid a bribe to be released from . . . camp in March 2009, having done a day’s physical training with the LTTE in 2008 and having sought asylum in Australia.

As we understand it, our friend’s appeal in this matter turns upon the findings at 206 and 207 where the reviewer accepted that it was likely that various government agencies in Sri Lanka:

would interview the claimant on his arrival –

This is following return from Australia –

that he will be met by an Australian Government official at the airport who will be able to assist while he remains in the airport.  I find that the authorities will want to ascertain the claimant’s reasons for departing Sri Lanka, what has been doing during his absence, whether he is involved in people smuggling, whether he has any involvement in or has sympathies with the LTTE –

Then at 207 the finding is:

I find that they will now allow the claimant to leave the airport until he has passed a police check.  I note that the Australian and Danish Governments advise that police checks are usually completed in a matter of hours.

Then it is noted that they can sometimes take longer if there are complications of various identified kinds, but then there is a finding four lines from the bottom:

However, I note that in the claimant’s case delays are unlikely because his –

or, for reasons that are given.  It is said against us, as we understand it, that on that finding that there would be questioning by those identified agencies that was usually completed within a matter of hours.  There is a threat to liberty and therefore serious harm and refugee status provided that that questioning occurs for a Convention reason.  Your Honours do not need – or will not get any assistance from the two judgments below where this decision has been challenged because they were both decided prior to Justice North’s reasons in WZAPN and the only ground of appeal is effectively a new ground that on the law as declared by Justice North in WZAPN on those findings, the decision was invalid.

Your Honours, against that factual premise, can I ask you now to turn to the Act?  As your Honours know, in section 36(2) of the Act, one of the criteria for a protection visa is said to be that a person is:

a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention –

and this Court held in NAGV that that means the person is a refugee within the meaning of Article 1A.  So it is a criterion for a protection visa that a person is a refugee within the meaning of Article 1A.  That is the context within which section 91R operates.

If your Honours turn to 91R(1), in our submission, the first thing that is apparent about this section, just focusing on its text, is that the premise for the engagement – to use a phrase Justice Hayne used in a case earlier this year – the premise for the engagement of this provision is that Article 1A of the Convention would otherwise apply.  So, we start from the proposition that:

Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol –

would apply and the effect of 91R(1) is then to say that notwithstanding that it would otherwise apply, it does not apply unless you can satisfy the criteria in (a), (b) and (c).

FRENCH CJ:   Is there a tension between that proposition and the proposition that the provision is declaratory, at least so far as (2)(a) is concerned?

MR DONAGHUE:   In my submission, not, because of the content of (a), (b) and (c), because (a), (b) and (c) are also declaratory of what the Convention would require.  But it is the case that while I do submit that the section is declaratory of the true meaning of the Convention – if I can call it that – it reflects what Parliament understood the Convention to mean which may not be the same as what everybody else understood the Convention to mean.

FRENCH CJ:   Well, again, I put to you, does that reduce to the proposition that the purpose of the provision is declaratory?

MR DONAGHUE:   Yes.  I will take your Honour to some of the extrinsic material that will support that submission.  But its purpose was declaratory in circumstances where Parliament took the view that there were some decisions of the courts that had unduly, widely, interpreted the Convention.  So, effectively, that there were decisions that had not accurately captured the meaning of the Convention so Parliament was declaring the correct or true meaning is the analytical approach that Parliament took.  Your Honours see an echo of that in that in the provision I read from the explanatory memorandum for the new Act earlier where it was said, Australia is not departing from the Convention but codifying Australia’s understanding of those obligations.

So, in circumstances where Article 1A of the Convention would otherwise apply, the words of the section say that, for the purposes of the Act and regulations, it does not apply “unless”, and that framework, we submit, is only capable of – well, is not capable of operating to expand.  Its only possible textual operation is to define, or declare, or conceivably to contract because the framework of the “unless” does not operate so that merely satisfying (1)(a), (b) or (c) would deem someone to come within Article 1A which they would not otherwise have done so.  The text is not capable of operating in that reverse fashion.  One of the three things that must be satisfied is (b):

the persecution –

that is, the persecution that would engage Article 1A of the Refugees Convention ‑

involves serious harm to the person –

So, what is caught up in this provision is that a person has to fear persecution that involves serious harm.  That is the effect of it and that is how Justice Crennan summarised the operation of the provision in a case called VBAS which we have cited but I will not take your Honours to.

Within that framework, the work that 91R(2) is doing is just defining the meaning of “serious harm” under (b) where the concept only has that declaratory or, possibly, limiting function.  Your Honours will see that the way that it is framed is that “serious harm” for the purposes of (1)(b) the following are instances of serious harm for the purpose of the paragraph.  So it is not exclusive but certain inclusive examples are given which relevantly include here paragraph (a).

GAGELER J:   But they are not just examples, are they?

MR DONAGHUE:   Well, they are instances.

GAGELER J:   Is an instance different from an example?

MR DONAGHUE:   I am not sure relevantly, in this context, that it is, your Honour.  It is clear that, from the extrinsic material, that it was not intended that this list would be exhaustive.  So, in that sense an example and an instance seem to me to be much the same thing.  Certainly, it is clear that if you are within the instance you are within the concept, within the statutory concept.  That is why, in our submission ‑ ‑ ‑

FRENCH CJ:   An example might be taken to define a category whereas an instance is a member of a set.

MR DONAGHUE:   Certainly, an instance is a member of a set and an example might also be a member of a set.  Your Honour, it is possible, I suppose, that there is a subtle distinction between those contexts but ‑ ‑ ‑

KIEFEL J:   An instance could be a factual circumstance.  That seems to be what the matters listed are.

MR DONAGHUE:   The matters listed, in my submission, are in the nature of categories.  That is the way that Parliament has approached it.  It has said there are certain kinds of thing that might happen to people, certain kinds of harm that they might suffer.  If you suffer harm of one of the categories that we have identified there then that is an instance of or ‑ ‑ ‑

FRENCH CJ:   The category of “serious harm” includes these things.

MR DONAGHUE:   Indeed – includes at least these things – might include some other things but includes at least these things.  One of the things that it includes is a threat to the person’s life or liberty.  Our friends in WZAPN, the respondent in WZAPN, as we understand it, contends that the proper way to analyse what the Minister submits should be happening or that the way the debate was fought out in the Federal Court before Justice North was that everybody agreed that there was a threat to liberty and that the debate was then about which threats to liberty were or were not “serious harm”. 

In our submission, your Honour should not accept that characterisation of what happened because that would be an untenable battleground to fight the case on in circumstances, but once it is accepted that there is a threat to liberty then it follows from the opening words of subsection (2) that one has an instance of serious harm.

The debate is properly understood and, in our submission, was clearly conducted in the Federal Court, as a debate about what the meaning of the word “liberty” – or what the meaning of the words “ a threat to liberty” is in that context.  Does it correlate to detention, any detention, or does it not?  That, we submit, is really the key issue that falls for decision in this Court.

FRENCH CJ:   Do you put more on “threat” than the meaning attributed in earlier decisions of risk or likelihood?

MR DONAGHUE:   No, I do not.  We accept that that is what “threat” means in this context, so it is really all about liberty.  It is, in our submission, the key question.  In our submission, what your Honours see in 91R(1) and (2) is Parliament reflecting concepts that were already part, and had already been held to be part of the analysis required in giving meaning to the undefined concept of persecution in the Refugees Convention.  In particular, the “serious harm” requirement reflected a view held both in Australia and elsewhere that persecution can only properly be found to exist in circumstances where a person fears – the words used in the jurisprudence – “serious harm”, both in Australia and overseas.

We have collected in our submissions in paragraph 22, footnotes 7 and 8, a number of references to support that proposition, which I will not take your Honours to now, but to give you one example - Chief Justice Gleeson in Khawar’s Case, which your Honours do not need to go to, 210 CLR 1, relevantly at paragraph 19. There, his Honour spoke of persecution as:

the inflicting of serious harm in violation of fundamental rights and freedoms –

That was the language.  I will take your Honours to one passage, probably most conveniently done if your Honours now do turn to SZTEQ, the Full Federal Court case, [2015] FCAFC 39. I am taking your Honours to this to show you a passage from a decision of this Court in Appellant S395 and then the way the Full Court understood it.  If your Honours go to paragraph 103 in SZTEQ ‑ ‑ ‑

FRENCH CJ:   Page?

MR DONAGHUE:   Page 31.

FRENCH CJ:   Thank you.

MR DONAGHUE:   Your Honours will see there a quotation from the joint judgment of Justices McHugh and Kirby in Appellant S395 ‑ ‑ ‑

KIEFEL J:   I am sorry, which paragraph was that?

MR DONAGHUE:   Paragraph 103, your Honour.

KIEFEL J:   Thank you.

MR DONAGHUE:   Justices McHugh and Kirby there explained in terms that reflect some language Justice McHugh had used in earlier judgments, that:

The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution.  Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment.

Then their Honours emphasise the same passage we emphasise –

Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it.

That, we submit, reflects a conventional understanding of the position in Australian law.  It, in its terms, suggests the necessity to ask a question about the intensity or duration of the harm that is feared.  Whatever form the harm takes, ask a question about the intensity or duration of the harm feared; that is, ask a qualitative question of the kind that Justice North held it was a jurisdictional error to ask.

The closing part of that emphasised sentence, that a person “cannot reasonably be expected to tolerate”, should not, in our submission, be misunderstood.  As the Full Court explained in paragraph 104, it has been misunderstood, particularly in England.  That is a passage that has been cited in many authorities both here and overseas, as the Full Court points out.  But it is not suggesting that part of the question is to ask what the person can be expected to do on their return to their country of origin.  That, as the Court held in S395, is not a question that one asks; one asks a question about what the person will do, and then whether, having answered that question, that will attract a real chance of persecution.

FRENCH CJ:   It goes back to Grahl-Madsen, does it not, a notion of what a person may equitably be expected to endure.

MR DONAGHUE:   Exactly, indeed.  It is recognising, we submit, the idea that is reflected in both academic writings and decisions that the Convention does not correlate exactly with protection of human rights.  There are some things that will infringe people’s human rights, but that the parties to the Convention did not define as the kinds of thing that would lead them to have an obligation, as a matter of international law, to offer protection to the citizens of another country.  The circumstances that attract that obligation to offer protection are at the higher end, and things that are infringements of rights, but that you are expected to tolerate or endure, are, while interferences with rights, not persecution within the meaning of the Convention.

FRENCH CJ:   There is a notion of non‑derogable rights, is there not, in the literature?  How does that intersect with this?

MR DONAGHUE:   Relevantly, your Honour, in this way, that there are certain kinds of thing – and torture is a good example, torture or slavery or matters of that kind – that are regarded as at the core and cannot be limited in any way, and much of the academic writing supports the view that, where one is talking about a right of that kind, then it will necessarily be serious enough to constitute persecution, which is not surprising because in effect it can be said, well, no one would reasonably be expected to tolerate being tortured or being put into a state of servitude or bondage.  But the question is a question that you always ask, even if the answer is obvious in some categories of case.

The point that the Full Federal Court, correctly, we submit, took from that passage, your Honours will see at 105.  Their Honours accept that:

this passage again makes plain that the decision whether conduct does or does not constitute persecution involves an evaluative exercise, no matter what the conduct is.

We submit that the Full Court were correct in reading the passage in that way.  Our friends invite the Court to take a different view and effectively to say that certain categories of harm, of which they say detention is one, automatically or per se constitutes persecution and they seek to support that submission in part by reference to the decision of this Court in Chan v Minister for Immigration (1989) 169 CLR 379, and I need to take your Honours to that. Chan of course is the foundational case establishing the real chance test in Australian law and commonly cited in support of that proposition.  It is less commonly actually necessary to go and look at the facts of what was being decided in Chan.

If your Honours turn to page 418 of the judgment you will see in Justice McHugh’s judgment his Honour’s explanation of what Mr Chan feared.  He was a citizen of the People’s Republic of China who had fled to Australia after a faction of the Red Guard which he had been associated with had lost influence in the particular region where he had lived.  What had happened to Mr Chan was an increasingly serious sequence of events prior to his departure from the PRC.  Starting in the middle of 418 he said:

in 1968 he was detained for two weeks at a police station.

That was the least serious of his detentions.  Then, having been detained for two weeks, his name was listed:

as a person opposed to the policies and ideas of the State.  He was assessed as “anti‑revolutionary” and exiled . . . to another area.

Having been exiled to another area, he then attempted to escape from that area on a number of occasions, which your Honours can see at the top of 419:

he tried to escape from the area [of exile] on three occasions –

and each time he received increasingly severe periods of detention, ranging from three to seven months in duration, and he was warned after the last attempt that:

any further escape attempt would bring two years detention in another part of China.

So in the factual context of Chan, we had two weeks’ detention followed by three months followed by a longer period followed by seven months followed by a threat of two years’ detention and, in our submission, that factual context cannot be overlooked when one looks at the references in Chan to a threat to liberty, because they were references made in a context where on any view of it the detention that was feared by Mr Chan was serious enough to get over the line to rise to the level of something that would not reasonably be expected to be tolerated.  Indeed, the result in Chan was that the Court held that the delegate’s conclusion to the contrary was Wednesbury unreasonable.

So, the relevant passages upon which our friends rely are particularly in Chief Justice Mason’s judgment at page 388 and, if your Honours look on 388 in the second half of the page – probably from about point 7 on the page, his Honour said in, with respect, we submit, conventional terms:

the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns.

That, we submit, is the same idea, the evaluative idea that your Honours have seen in Justice McHugh and Justice Kirby’s judgment in 395.  Then:

Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group . . . amounts to persecution if done for a Convention reason.  The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason.

Then, and our friends particularly rely on this, at the top of page 390 we submit, four lines down Chief Justice Mason said:

Discrimination which involves interrogation, detention or exile to a place remote from one’s place of residence under penalty of imprisonment for escape . . . amounts prima facie to persecution unless the actions are so explained that they bear another character.

A fair reading of that paragraph ‑ interrogation, detention, exile to a place remote, punishment for escape – that is reflecting the facts of Chan.  That correlates with things that Mr Chan feared.  It is not saying that discrimination which involves detention necessarily constitutes persecution, which is the way our friends are seeking to use it.  In our submission, it is just a misreading of what Chief Justice Mason is saying, particularly when read in the context of 388 where his Honour says it necessarily must be serious punishment, significant detriment.  His Honour was not suggesting a per se rule for detention.  At page 416, in Justice Gaudron’s reasons, her Honour, in the middle of page 416 speaks of:

It is not reasonable by the standards of civilized nations to categorize exile and detention for reasons of political opinion as discrimination “to a limited degree” . . . Whatever else may lie within the meaning of “persecution”, significant deprivation of liberty –

So, again, her Honour is, we submit, recognising the evaluative judgment, not adopting a fixed or per se rule.  To the same effect, we submit, Justice McHugh’s judgment at pages 430 and 433 should be understood as – but I will not take your Honours to them - tied to the facts.

The Full Court engaged in an analysis of Chan in SZTEQ. I do not need your Honours to go to it but it is at paragraphs 96 through to 100 and we submit that their Honours correctly read the decision, in effect, rejecting an equivalent of the submission that is put to your Honours in reliance upon Chan.

So, in our submission, one really comes, as a matter of statutory interpretation, to the question what does the word “liberty” mean in a context where the provision was being enacted in circumstances where Australian law did not create any special category that necessarily meant if you were detained at all then you were a refugee. 

Having used the word “liberty”, a constructional question immediately arises as to what does that word mean because, as a matter of ordinary language, it is capable of meaning quite a number of different things.  We have not given your Honours a dictionary definition extract but in paragraph 40 of our submissions we do quote a number of the first three definitions from the Shorter Oxford Dictionary which are:

‘[e]xemption or release from captivity, bondage or slavery’; ‘exemption or freedom from arbitrary, despotic, or autocratic rule or control’ –

We say both of those are obviously evaluative ideas, and the third is -

‘the condition of being able to act in any desired way without restraint; power to do as one likes’

So one has to choose what was Parliament doing when it used that word and, in our submission, the choice is a choice that readily allows, just as a matter of language, an evaluation.

FRENCH CJ:   It means a bit more than not being locked up, I guess.

MR DONAGHUE:   Exactly.  That is really all we need to win the appeal, your Honour, is that it is just not enough to say if you are locked up at the airport for two hours on your way through for a Convention reason, your liberty has been threatened.  As a matter of language that is, we submit, not open.  The Full Court ‑ ‑ ‑

GAGELER J:   I must say “liberty” is a much richer concept than one gets out of some standard dictionary definitions.

MR DONAGHUE:   Your Honour, that is why we have not tried to dwell on them.  It is like freedom.  It is a concept, we submit, that carries, as your Honour says, rich and varied possible meanings, but all of them, in our submission, require someone who is asking a question about liberty to be evaluating factual context to decide whether or not something properly described as liberty is being threatened.  You do not do it just by saying detention equals threat to liberty, which is what has been done in the court below. 

We respectfully adopt the way that the Full Court in SZTEQ put it and if I could ask your Honours to go back to this.  I can do it in two steps, actually.  If your Honours go to SZTEQ, their Honours at paragraph 54 are dealing with Justice North’s main point in that his Honour said if you look at 91R(2) you see express adjectival words in all of the subparagraphs other than (a). You do not see it in (a) and, therefore, there is no room for an evaluative judgment in (a). The Full Court, at paragraph 54, looks at that argument at the end of paragraph 54 – this is on page 16 – and say:

That is because of what must be seen as a deliberate choice by the Parliament not to insert any adjectival qualification in s 91R(2)(a), nor to insert any circumstantial qualification of the kind found in ss 91R(2)(d), (e) and (f).  The constructional choice to be made about the absence of any adjectival qualification is whether the Parliament intended to reflect absolute concepts, or rather to reflect broader understandings of the concepts of life and liberty (or freedom) within the framework of Art 1A of the Convention.

The answer that your Honours give at paragraph 59 on page 18 is that:

Unlike North J in WZAPN, we do not consider the absence of adjectival qualification in s 91R(2)(a) to be of significance, given the context of the provision as a whole.  Rather, the absence of an adjective indicates that a threat to “liberty” is not synonymous with the possibility of a person being held briefly on remand or detained for a short time for questioning.  In this context, “liberty” is a nuanced concept which takes it meaning from the context in which it appears, namely the requirement that the persecution involve serious harm –

We respectfully embrace that analysis.  In terms of the declaratory purpose that your Honour the Chief Justice asked me about – I am now at 5(d) in our outline – the relevant extrinsic material is also included in that bound volume that I took your Honours to earlier.  That material makes it clear, in our submission, that the purpose of 91R was to restore what Parliament conceived as the proper interpretation of the Convention, rather than to depart from the Convention. 

Could I ask your Honours to turn first to the second reading speech, which is behind tab 6 in that bound volume?  On the first page of the second reading speech which was given by the then Minister, page 30420, having talked about the challenge, what he identified in the middle of the page as the challenge of:

the increasingly broad interpretations being given by the courts to Australia’s protection obligations –

At the very bottom of that page, the Minister said –

Our action in legislating on the application of the refugees convention is consistent with the principles recognised in international law that states have the right to define how they will implement their obligations under international treaties.

FRENCH CJ:   Now, that also needs to be read in light of the paragraph just below halfway, that:

Australia now provides protection visas in cases lying well beyond the bounds originally envisaged by the convention.

MR DONAGHUE:   I think, your Honour, that what the Minister was saying there is that that is happening because the courts are interpreting ‑ ‑ ‑

FRENCH CJ:   Exactly, that is the point.  In other words, rather than talking in terms of parliamentary understanding, which I find a rather elusive concept, one looks to the purpose of this.  The purpose seems to be directed to a construction of the Convention which the courts have exceeded, as described in this second reading speech.

MR DONAGHUE:   I accept that, your Honour.  This is Parliament defining ‑ ‑ ‑

FRENCH CJ:   I mean, one might agree or disagree about whether the existing jurisprudence had exceeded correct application of the Convention.  The purpose of these amendments as described in the second reading speech is to give effect to an understanding of the Convention.

MR DONAGHUE:   Absolutely, your Honour, and certainly not to sever Australian law in some way from what the Convention would otherwise have required.  Your Honour sees at the bottom of the next page of ‑ ‑ ‑

FRENCH CJ:   There may be a difference between that purpose and the purpose of the most recent amendment to which you took us earlier in some respects, but not in relation to the “serious harm” side.

MR DONAGHUE:   Not in relation to this particular issue, yes, your Honour.  At the bottom of page 30421, three paragraphs up, it says:

Providing a definition of persecution in the legislation will ensure that the level of harm necessary to constitute persecution will be at a level intended by the refugees convention –

which, in my submission, accords with what your Honour the Chief Justice just put to me.

GAGELER J:   Mr Donaghue, is there any identification in the extrinsic material or in your submissions of those court decisions which were seen to create the mischief at which this legislation was aimed?

MR DONAGHUE:   Your Honour, I have tried to answer that question and sought instructions from the Immigration Department as to whether there was any indication within the records of the Department or publicly about what those decisions are, and nobody has been able to answer that question.  The short answer is we have not identified them.  We have tried to identify them and been unable to do so, which, I accept, seems a slightly surprising state of affairs, but that nevertheless ‑ ‑ ‑

GAGELER J:   Yes.  Well, you took us to Chan.  Was Chan one?

MR DONAGHUE:   Well, your Honour, I am about to take you to – I think the answer is probably not.  Certainly when this question was looked at in VBAO in the context of what the meaning of “threat” in 91R means, Justice Gummow took the view that Chan was not one of them, that the Parliament was happy with Chan, that the cases that had followed Chan had in its view departed from the true meaning of the Convention.  So that is how his Honour analysed it there, but we have not been able to identify the particular trigger.

I do not want to dwell at any unnecessary length on this extrinsic material.  We have also given your Honours the revised explanatory memorandum behind tab 5 and perhaps rather than read it could I just note for your Honours in particular paragraphs 1, 3 and 6 and then paragraphs 19 and 25 which we submit support the same point that I have just been addressing to your Honours.

Your Honours, I am also not sure that I need to take you to VBAO, but the relevant passage to which I was just referring your Honour Justice Gageler in VBAO (2006) 233 CLR 1 where his Honour looks in detail at the extrinsic material, he quotes at length from the explanatory memorandum, and then relevantly it is paragraphs 16 through to 20 that deal with the particular question that ‑ ‑ ‑

FRENCH CJ:   Is it right to say the focus in that case was on the risk or threats ‑ ‑ ‑

MR DONAGHUE:   Yes, it was all about what “threat” means.  Does “threat” mean an utterance, a communication, or does it mean a risk, and we do not contest the conclusion there, although we do say that particularly reading paragraphs 19 and 20 of his Honour Justice Gummow’s judgment, his Honour is recognising the need to read 91R as a whole, 91R(2) in particular as a whole, and we submit that nothing his Honour said would suggest that paragraph (a) should be treated as embracing the two‑hour detention at the airport scenario, even though everything else in the section is obviously directed at a threshold of severity.

Your Honours, can I move then next to a brief review of the way that some other parties to the Convention have understood the Convention to operate, including the need for an evaluative exercise to be undertaken in assessing whether or not harm is significantly serious.  We do that because, as I said when I took your Honours to Justice North’s judgment, we agree with his Honour that it is appropriate to interpret the domestic legislation giving effect to these concepts from the Convention in accordance with the international understanding of the meaning of the Convention.  Your Honours endorsed that approach, we submit, in the Minister for Immigration v QAAH (2006) 231 CLR 1, where your Honours said at page 15, paragraph 34:

Australian courts will endeavour to adopt a construction of the Act and the Regulations, if that construction is available, which conforms to the Convention.  And this Court would seek to adopt, if it were available, a construction of the definition in Art 1A of the Convention that conformed with any generally accepted construction in other countries subscribing to the Convention, as it would with any provision of an international instrument to which Australia is a party ‑

So it is that interpretive rule that explains the reason that we say that this body of international material that I am about to come to is useful.  The Full Court in SZTEQ again undertook a similar exercise and in part, for that reason, I propose to do this fairly briefly, but like the Full Court we emphasise that the utility of these cases is not, insofar as we contend that they are all correct on the particular facts that emerged in relation to them - they may or may not be correct - on the particular facts, the point that we seek to draw is that they involve an evaluation, that even where the harm feared is detention, the decision‑maker evaluates whether or not the detention is serious enough in its particular circumstances having regard to matters such as frequency, length and conditions to constitute persecution. 

The Full Court at 110, this is in SZTEQ at 110 and 122 makes it clear that that is also the use that their Honours were making of the cases. Having looked at them all, they formed the conclusion at 138 that:

This summary of approaches taken in other jurisdictions, by no means comprehensive . . . Art 1A(2) is understood by courts in other jurisdictions as requiring decision‑makers to evaluate the nature of the harm claimed to be feared and to be satisfied it reaches a level of intensity or seriousness –

So, the starting point, your Honours, is a document called – well, the starting point I propose to adopt is the law as applied in Europe and your Honours relevantly find that codified in a document called the EU Qualification Directive 2011 of 1995, which your Honours should have.

Just to give your Honours an indication of the legal status of this document, if you have it before you, you can see from the top left‑hand corner it is a document made by the European Parliament and the Council of the European Union.  The European Parliament is a body elected by votes of citizens within the EU.  The Council is comprised of ministerial level representatives, one from each member of the EU.  As a matter of law under the Treaty on the Functioning of the European Union, Article 288, the directive is binding on members but it is left to the national authorities to choose the formal method by which they will introduce the directive into their domestic law.

FRENCH CJ:   Now, this is a directive made in 2011 and it overtook an earlier directive, did it not?

MR DONAGHUE:   It did.  There was a 2004 directive relevantly to the article I am about to go to in the terms – that is the 2011 and also, relevantly, the 2004 directive applies as part of English law and, I think, the law of Denmark.  Those two countries were able to opt out of this 2011 directive.  But it does not matter because the terms of it are the same for our purposes.  In terms of what the directive is doing, there is a very long list of recitals, about 53 in all, but recital (4) records that:

The Geneva Convention and the Protocol provide the cornerstone –

So this is not seeking to displace the Refugees Convention.  The idea was, as recorded in recital (12), to ensure that:

Member States apply common criteria for the identification of persons genuinely in need of international protection –

and your Honours also see the common criteria idea at recitals (23) and (24).  The directive then deals with all sorts of different matters that arise under refugee law but at Article 9 on page 337/15, there is a provision that has some family resemblance to 91R – being a resemblance that the Full Court in SZTEQ pointed out – also at paragraphs 68 and 139 to 140. We rely, in particular, on Article 9.1(a) where the directive states that the Act must:

be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made –

So, picking up your Honour the Chief Justice’s point -

under Article 15(2) of the European Convention for the Protection of Human Rights –

So the qualification directive in its terms is directing all of the EU states to adopt a judgment based upon the sufficient seriousness, focusing on severe violations of rights.

FRENCH CJ:   Is this, as it were, a top‑down directive formulated with either European community or does it reflect something in the nature of a restatement – in other words, based upon the existing approaches by various national courts?

MR DONAGHUE:   Your Honour, it seems from reading the recitals that there was a concern about uneven practice across member states that was encouraging forum shopping in asylum claims and with free borders within the EU that is a problem.  So there was a desire to place a floor under these circumstances in which refugee claims would be recognised.  It is expressly recited somewhere in here that if states want to be more generous they can be but that it was desired to ensure that there was at least a certain baseline.  At least in respect of Article 9 there does not seem to have been any desire to change anything because, as your Honour points out, there was a pre‑existing directive in the same terms as that Article 9 requirement.

GAGELER J:   Do we have Article 15(2) in the material you have given us – Article 15(2) of the European Convention for the Protection of Human Rights?

MR DONAGHUE:   I think, your Honour, that I can show it to you in the next thing that I am about to go to which is a case applying this directive and, I think, it extracts the provision.  So that is a decision of the Grand Chamber of the Court of Justice in Germany v Y [2013] 1CMLR 5 which is a judgment about the application, amongst other things, the application of that provision.  So the answer to your Honour Justice Gageler’s question is - and page 197, paragraph 6, the court there quotes Article 15 of the ECHR which is about derogations in times of emergency and it is talking about a quite limited group of rights:

(‘Prohibition of torture’) . . . (‘Prohibition of slavery’) . . . (‘No punishment without law’) –

We do not read Article 9 as limiting.  Indeed, in my submission, it is clear that Article 9 is referring to those rights only as in particular example of things that will constitute persecution.  So it is not restricted to the Article 15(2) rights but those rights are at the core, as the Chief Justice put to me earlier.

In Germany v Y, your Honours can see the way that the Grand Chamber approached Article 9, starting on page 205, paragraph 53.  Paragraph 53 just paraphrases the terms of the Directive.  This case was about freedom of religion and, in particular, about public manifestation of freedom of religion, and at paragraph 57, the Grand Chamber recognises that:

Freedom of religion is one of the foundations of a democratic society and is a basic human right.

There was no question about the significance of the right in question.  In paragraphs 58 and 61, the Grand Chamber emphasises that the fact that freedom of religion is a basic right does not mean that:

any interference with the right . . . constitutes [an] act of persecution . . . 

On the contrary . . . art.9(1) of the Directive –

says it has to be a “severe violation”.  In 60 –

Acts amounting to limitations on the exercise of the basic right to freedom . . . provided for by law –

I can pass over 60; and 61 ‑

Nor can acts which undoubtedly infringe the right conferred by art.10(1) of the Charter, but whose gravity is not equivalent to that of an infringement of the basic human rights from which no derogation can be made . . . be regarded as constituting persecution –

In my submission, not surprisingly, having regard to its terms, the Grand Chamber of the European Court of Justice has held that an evaluative exercise is necessary in determining whether or not persecution exists.  Similarly – just before I leave Europe, if I could give you a brief reference to a decision of the House of Lords also quoting from the qualification directive?  It is HJ (Iran) v Home Secretary [2011] 1 AC 596. This case is effectively the UK equivalent of S395 about homosexuals and whether there is an obligation to live discreetly in order to avoid persecution; that was the issue that the Supreme Court was grappling with in that matter.  At paragraph 12 on page 621, the House of Lords is dealing with the meaning of persecution, noting that:

The Convention does not define “persecution”.  But . . . it is a strong word ‑

In the middle of paragraph 12, above the quotation, you will see there is a reference to the Directive – this is the earlier version that I mentioned to the Chief Justice, the 2004 version –

on minimum standards for the qualification and status of third country . . . refugees –

It is quoted, and your Honours can see the terms are relevantly the same.  Then, the House of Lords also quotes from the same passage in S395 that I took your Honours to earlier.  All of that is really to say that there is not any significant divergence between the approach that is reflected in the Australian cases and in 91R in the EU Directive in the Supreme Court’s application of the EU Directive.  All of them require an evaluation of the kind that we seek.

Finally, on this comparative exercise I will take your Honours to two cases from the US, mainly because, in our submission, the way that our friends are seeking to distinguish the United States authorities should not be accepted.  The first case is Topalli v Gonzales 417 F 3d 128. It is a decision of the First Circuit Court of Appeals in 2005.

The facts of this case, which your Honours can see on page 129 in the second column, involved an Albanian man who had been arrested and beaten, in a way that was accepted to have occurred but that did not require medical treatment, on seven different occasions over a period of three years.  One of the issues in the case was how that should be assessed against the refugee standard.  At the bottom of 129 you will see it is said:

None of the periods of detention lasted more than 24 hours.

So this was a case involving repeat but short‑term detention and sometimes the court said the detention lasted much less than 24 hours, which appears from halfway down page 132 in the left‑hand column.  Page 132 is where it says:

The record reveals that the detentions never exceeded 24 hours (and sometimes lasted for much less time).

At the top of page 130 it is accepted that the beatings that Mr Topalli had received had not required medical attention.  So that was the factual claim that was being evaluated.  In terms of the legal framework that applies in the US, at page 131 in the right‑hand column, the court moves to the applicable statutory framework which requires the appellant to show that they are:

“unable or unwilling to return to [the applicant’s country of nationality] . . . because of persecution or a well‑founded fear of persecution on account of race, religion, nationality, membership in a particular social group –

So it is using the Convention language.  Then it is pointed out the applicants can under the US law -

meet this burden in one of two ways:  1) by demonstrating a well‑founded fear of persecution on account of one of the statutory grounds –

So that is the way we do it –

or 2) by establishing past persecution on account of one of the statutory grounds so as to be entitled to a presumption of a well‑founded fear –

So you can look backwards and if able to establish past persecution get the benefit of a presumption, or you can just look forwards in the way that an Australian decision‑making forum would do.  The next paragraph talks about the standard of review.  Our friends, we submit incorrectly, seek to dismiss these cases in part as cases applying the Chevron doctrine and they say, well, this Court has rejected the Chevron doctrine so ‑ ‑ ‑

FRENCH CJ:   The Chevron doctrine has to do with a reasonably open interpretation, whereas this is to do with evaluation, is it not?

MR DONAGHUE:   Evaluation of evidential standard, exactly.

FRENCH CJ:   Yes.

MR DONAGHUE:   So this is not about Chevron at all.  This is about deference to the fact–finding – or not deference to fact‑finding; it is about sufficient evidence before a fact‑finder to support – it is more akin to a Wednesbury review standard than a Chevron idea.

Now, what had happened on the facts that I have recounted to your Honours is that the US Board of Immigration Appeals had held that Mr Topalli had not been subject to past persecution.  It was that that was being reviewed on the deferential substantial evidence standard referred to in the second half of 131.  In the middle of page 132 in the left‑hand column you will see that the Court said that:

The question of whether Topalli suffered past persecution on account of his political beliefs here is a close one.  But we are bound by our standard of review, and without minimizing Topalli’s beatings at the hands of the police, the record does not compel a reasonable fact finder to say that he suffered past persecution.

If just being detained was enough then Mr Topalli had undoubtedly been detained for seven periods of time, some up to 24 hours, and no matter what standard of difference one was applying, the record would have revealed error and the Court could have overturned that decision.  The case, in my submission, clearly shows that there is, as a matter of US law, no automatic rule of the kind that Justice North would have favoured.  Indeed, over the page – sorry, before I go there, the other point we would make on 132 in the right‑hand column about point 3 of the way down the column is that the Court says:

We cannot say that we are compelled to conclude that Topalli was subjected to systematic maltreatment –

their Honours use the words “rising to the level of persecution” which is the same phrase used in Australia.  The respondents, in their submission, say that our submissions are wrong because we refer to the US law applying that concept of “rising to the level of persecution” and that US law involves some different test; with respect, we do not understand that submission.  The case demonstrates, we submit, what we have said it demonstrates, in writing.  There is a reference to another example about point 7 in that column of a case called Nelson:

solitary confinement three times, each time lasting less than 72 hours –

Over the page on 133 it is said about point 2 of the way down the column:

The BIA –

which is the Immigration Appeals Board:

is certainly allowed to take into account the severity, duration, and frequency of physical abuse to determine whether the abuse extends beyond “unpleasantness, harassment, and even basic suffering” to rise to the level of persecution.

Your Honours, the other case I was going to take you to, I think I will not, it is Gomez‑Zuluaga, but it is another case involving multiple periods of detention.  On the facts of that case, the first two were considered and held not to be serious enough.  The third detention, which involved a woman being kidnapped for a week and chained to a bed by the FARC terrorist organisation in Colombia for a period of time, clearly constituted detention.  So, the Court, you can see the evaluation at work ‑ very short term detention that did not result in harm, was not persecution; more lengthy detention with attendant circumstances, obviously was.  We also, your Honours, submit that there is a large body of academic writing that is supportive of our submission ‑ ‑ ‑

FRENCH CJ:   Just before you go to that – just going back to the Full Court of the Federal Court in BZAFM ‑ ‑ ‑

MR DONAGHUE:   That is one of the other versions of SZTEQ.

FRENCH CJ:   Yes, that is right.  I am just looking at paragraph 148 and it maybe also said in the ‑ ‑ ‑

MR DONAGHUE:   I am sure it will be, your Honour, I just need to get a copy of that in front – but if your Honour could read to me what your ‑ ‑ ‑

FRENCH CJ:   Yes, I will just read:

Whether or not the preferable analysis is to measure it against human rights norms, the point of referring to this approach in some detail here is to put beyond doubt that, on any view, the evaluation of whether what a person claims to fear is “serious harm” will be a question of fact and degree, often complicated and quite specific to the individual concerned, and involving consideration of domestic and international justifications for interference with, and limits placed on, the enjoyment of human rights in a particular country of nationality.

Now, that suggests a very strong multifactorial approach which does not, as it were, offer a test for consideration beyond the words “serious harm” themselves, albeit in the context of particular instances.  Do you propose, in answer to or as an alternative to the approach that Justice North took, anything more precise than that?

MR DONAGHUE:   We do not, your Honour, for this reason, that like the reference to “freedom” in the Convention, the reference to “liberty” does seem, as Justice Gageler put to me earlier, to be a word of such richness that it is difficult to identify a limiting principle that would apply more generally.  We submit that the content has to be given to the term by reference to all of the facts and circumstances of the particular case, and a judgment is called for.  I accept that that is not a bright line rule, but the question is a question asked in the context of whether a person fears serious harm, and that it requires a line to be drawn by decision‑makers effectively on a case by case basis.

GAGELER J:   Do you equate the line with the language of the EU Directive as being a severe violation of a basic human right?

MR DONAGHUE:   It is certainly close to that line.  That language, in my submission, certainly has parallels with the language that Chief Justice Mason used in Chan that I took your Honours to earlier, where:

serious punishment or penalty or some significant detriment or disadvantage if he returns.

That is the kind of language – so I think, your Honour, I would not exactly adopt the EU law.  The framing of Article 9 uses language that is perhaps somewhat stricter than the language used in the Australian case law.  The standard that we advocate is the standard reflected in Justice McHugh and Justice Kirby’s judgment in S395, and by Chief Justice Mason in Chan.  It has to be significant interference with rights, not any interference with rights will do, but not only severe interference with non‑derogable rights.  As I say ‑ ‑ ‑

FRENCH CJ:   You would accept that – for example, going back to Grahl‑Madsen who was reviewing mainly, I think, German cases in 1966, that:

Numerous arrests or summonses for interrogation –

may constitute persecution according to the circumstances.

MR DONAGHUE:   According to the circumstances, yes, quite right.

FRENCH CJ:   I am quoting from page 201.

MR DONAGHUE:   Yes.  I think in the same article, Grahl‑Madsen says detention of less than a few days will not or ordinarily will not.

FRENCH CJ:   I suppose there may be an accumulative effect.

MR DONAGHUE:   I accept that, and the Australian cases recognise, and we do not deny, that it is necessary to look at the accumulation of separate matters in forming a view, which is why a very bright line of the kind that his Honour Justice North drew is not appropriate.

FRENCH CJ:   Really, the core of your argument is that Justice North got it wrong in applying, as it were, a “bright line” test.  There is nothing being put to substitute for that, other than the evaluative approach which the IMR took in this case.

MR DONAGHUE:   Yes, indeed, and that the Full Federal Court likewise took, which they are taking because that is the statutory question that they are being asked, and they are endeavouring to give content to a word that has a broad meaning; calls for a judgment of that kind.

GAGELER J:   Is it relevant to the judgment as to whether detention amounts to a deprivation of liberty?  Is it relevant to consider whether or not the detention is pursuant to law?  Is it relevant to consider whether the detention is arbitrary?

MR DONAGHUE:   In my submission, those questions are questions that one – within a framework of Article 1A or refugee decision‑making – would need to ask for the purpose of resolving components of the test other than questions about the seriousness of the harm that is being suffered.  In my submission, those questions are not relevant to the seriousness of the harm that is being suffered.  That just depends on what has actually been done to the person, not why it has been done to the person or pursuant to what authority it has been done to the person.  But they will be relevant questions at other steps in the analysis including, in particular, whether there is harm for and essentially or significantly for a Convention reason.

To put it another way, in my submission, if one is locked in a room at the airport for two hours, whether or not that is serious harm does not depend on whether or not the Sri Lankan Immigration Act authorises you to be locked in the room for the two hours.  The question of the seriousness of the harm that you have suffered is the same if you are locked in the room for that period of time.  The law is relevant for other purposes but not for that purpose. 

It might be that if the detention is justified by law that that is a complete answer, quite separately from the serious harm answer to whether or not there is a good claim of persecution because if authorised by a law of general application that is appropriate and adapted to a proper state purpose, then that would be the end of the refugee claim.

GAGELER J:   Well, it appears in the American case to which you took us that the detention for up to 24 hours was authorised by law.

MR DONAGHUE:   Or at least could be.

GAGELER J:   Could be.

MR DONAGHUE:   Could be.  I am not sure whether – I do not think there was a finding that this particular detention was because this particular detention was attended by beatings and other matters, but it seemed that the upper limit was set by that.

GAGELER J:   That seemed to explain why the detention never went beyond 24 hours in any particular case.

MR DONAGHUE:   Yes.  It sometimes went shorter.  Indeed.  So, the legislative framework might bear upon the facts that need to be evaluated for the purpose of making the serious harm judgment but, in my submission, they do not themselves answer the question as to the severity of the harm.

I am not, your Honours, proposing to take you through the academic material.  It is referred to in our written submissions.  It is very usefully summarised by the Full Federal Court in SZTEQ, particularly from paragraphs 141 to 153, including the Grahl‑Madsen article to which the Chief Justice has referred but also numerous other academic sources.  It leads the Full Court, having reviewed all that material, to conclude that all of the academic articles are consistent with – this is 153 – the need for an evaluative approach in determining serious harm.

The only other point, your Honours, that I seek to address the Court on orally is a point that is limited just to the Minister’s appeal in WZAPN.  To that end, I need to take your Honours back to the appeal book in that matter and to the part of the reasons that I passed over on page 16.

So the findings about the absence of serious harm end at the end of paragraph 81 in terms that are themselves sufficient to mean that the respondent’s claim failed because he did not fear serious harm and therefore he could not meet that requirement.  In paragraph 82, structurally the IMR is giving an alternative reason why the respondent’s claim fails, introduced by the words “Furthermore, even if”, a familiar way of introducing alternative reasoning.  So, even if there was a real chance of serious harm – which there is not, on the third line:

I am not satisfied it will be for the essential and significant reason of a convention ground -

which is a reference to section 91R(1)(a).  Why?  Because, in paragraph 83:

Country information indicates that State and de‑facto authorities . . . will stop and question people indiscriminately.

If it is indiscriminate, it cannot be for a Convention ground.  It is then said – it is not entirely sure exactly what work this sentence does - but:

Detention will follow if the person stopped is suspected of being involved in any illegal or immoral activity or otherwise presents some threat to State security.

The reason I say it is not exactly clear what work that does is it is not clear how the absence of identity papers fits within the concepts discussed in that sentence.  But what the reviewer says in the next line, on the first line of 84, is that:

The inability to provide identification papers will attract further inquiries, but I do not consider that such questioning and detention as described by the claimant to be persecutory, as I do not consider it to be discriminatory for a Convention reason.

I ask your Honours to stop there.  There is a debate about the construction of this paragraph between the parties.  But just stopping there, the finding is the questioning and detention about identity papers is not discriminatory for a Convention reason. 

If that is not a freestanding finding, it would have to follow that there is some possible Convention reason that could be explaining the discrimination that occurs, and if your Honours ask, well, what is the possible Convention reason that could be explaining, the only possibility, in my submission, particularly when your Honours go back to 79, is that the Convention ground is membership of a social group of persons comprised of people who do not have identity papers, because the finding in paragraph 79 is that the reason for the discrimination is absence of identity papers.  So if the harm was occurring for any other reason, it would not be occurring for the Convention reason, if I can put it that way.  But when your Honours then go to the next sentence:

Even if people without identification papers could be regarded as a particular social group (which I do not accept) –

So, the only possible social group that could have been explaining the discriminatory treatment is a social group that we know that this reviewer does not think exists.  So, in my submission, on a fair reading of that paragraph, the reason that the alternative advanced is an alternative that says, even if you fear serious harm, you are still not a refugee because you are not being persecuted for a Convention reason because none of the possible Convention reasons that you have claimed exist on the facts of this case.  That would itself be enough to resolve the claim. 

What our friends and Justice North – what Justice North found and our friends invite your Honours to find is that this alternative reasoning depends upon the proposition that there is an unidentified law of general application that is causing this detention to occur and Justice North found that there being an unidentified law of general application, the failure to give the respondent any information about it was a denial of procedural fairness. 

But, in our submission, one never gets to the territory of any analysis of laws of general application because on a fair reading of the reasons, the Tribunal cannot have been relying upon such a law, at least, as its primary reasoning here because the finding that there is no discrimination for a Convention reason necessarily, in circumstances where we know that there is no particular social group accepted, based on lack of identification papers, speaks for itself. 

It may well be that the reviewer was advancing a still further alternative in the last sentence of 84 by the words “Even if”.  That still further alternative could have been referring to a law of general application.  It is possible that is what the reference to Applicant S is about there.  But if that is what is being said, it is alternative alternative answer to the

conclusion and, in my submission, there is no duty as a matter of procedural fairness to disclose information about an alternative alternative basis for the decision.  This applicant had failed on grounds that did not depend on any view expressed about a law of general application.

Justice North in his reasons accepted that the appellant to succeed before him needed to attack both the findings at 79 through to 81, the serious harm findings, and the findings about Convention ground at 82 to 84.  So his Honour expressly accepted at paragraph 53 of his reasons that if the then appellant, now respondent, could not attack both of those findings, he would lose. 

In this Court, the respondent now says that that finding at paragraph 84 infects everything above so that if they can preserve that paragraph then the appeal should fail.  In our submission, that argument involves a complete rewriting both of the reasons that your Honours see on this page, from 79 through to 84, and also of the judgment below and we have dealt with it, I think, sufficiently in writing.  But, in my submission, there is absolutely no reason why information about the hypothesised law of general application would have any bearing on the Tribunal’s reasons about the severity of the harm occasioned on the times when detention occurred.

The only final point I need to make, your Honours, is that there are three times in this section of the IMR’s reasons - the first at the bottom of page 15, the last two lines.  What I am identifying are three occasions where the IMR expressly – where it is relying upon the existence of a law of general application it says so.  The IMR expressly says this is going to happen but it is going to be:

as a result of the State’s law of general application –

So you see it at the end of 77.  You also see it in 94, the last line of 94 and, again, in paragraph 97, all of which tends to suggest, in my submission, that when this reviewer wanted to base a decision on the existence of a law of general application he said so.  The contrast between those paragraphs and the way that 84 is expressed is we submit still further reason why our friend’s interpretation should not be adopted.  Your Honours, unless the Court has any questions, those are our submissions.

FRENCH CJ:   Thank you, Mr Donaghue.  Mr Niall.

MR NIALL:   If the Court pleases.  The Court should have to hand an outline of the propositions which we seek to advance by way of oral argument.  Can I just divide my oral submissions into three aspects?  Firstly, I will deal with the statutory construction question of 91R which is dealt with in paragraphs 1 to 10 in the propositions document.  Then I will turn to what we say about the IMR’s reasons and what the reviewer found which is 11 and 12 and then, finally, the procedural fairness.

Can I start with the construction question and identify the first principal proposition that we identify which is that Article 1A of the Convention requires an evaluative judgment as to the degree of harm said to give rise to the claim of persecution.  So the degree of harm is plainly an evaluative judgment.  But at the kernel of our submission is that 91R says how that evaluative judgment is to occur. 

Now, at a number of points in our learned friend’s submissions to your Honours – particularly at the early parts of his address – he said that the holding of Justice North was equated with a finding of persecution and a holding that he is a refugee.  The critical aspect is that 91R(2) is not directed to the ultimate question of persecution or whether the person is a refugee but with a more limited question which is what level of serious harm would be necessary in order to establish a well‑founded fear of persecution.

That is important when one looks at liberty because the critical evaluative exercise in a liberty case is not whether there is a loss of liberty but whether it may be explained by reference to systematic conduct, law of general application or Convention reason.  One of the curiosities of the Act is it disentangles Article 1A in a way which the authorities in this Court have indicated is not what the Convention requires.

Justice McHugh in Haji Ibrahim, which I will take your Honours to in a moment, talked about – and in Applicant A – Article 1A being a compound conception and one of the difficulties with 91R(2) is it is directed to a single aspect.

Now, before coming immediately to the text, can I seek to locate the parameters of the debate that was in play before the enactment of 91R?  Before the enactment of 91R and Subdivision AL generally, the Act did not prescribe the content of harm for the purposes of the Act and it was left to judicial explanation as to what would fall within or without that evaluative judgment.  It appears from the cases themselves, in this Court, that that entailed an evaluative judgment with contestable results at the margins.

Can I just seek to locate that contest at a couple of points - firstly, in the judgment of the Court in Chan at 169 CLR and your Honours have been taken to a couple of passages. In the judgment of the Chief Justice at 390, at the top of 390, the Chief Justice notes that:

Discrimination which involves interrogation, detention or exile . . . amounts prima facie to persecution –

But his Honour the Chief Justice then goes on to say -

unless the actions are so explained that they bear another character.

That qualification is important because when one looks at detention it can often bear another character, but for the purposes of this Act it is still serious harm.  In the judgment of Justice Dawson at page 399, his Honour, in our respectful submission, more acutely identifies the conflict, or contest.  At the bottom of 399, his Honour notes a:

general acceptance that a threat to life or freedom for a Convention reason amounts to persecution -

but the debate is whether it -

would extend it to other measures in disregard of human dignity –

His Honour goes on at 400 to observe:

that it may be inferred from the Convention that a threat to life or freedom for a Convention reason is always persecution, although other serious violations of human rights for the same reasons would also constitute persecution.  It is unnecessary for present purposes to enter the controversy whether any and, if so, what actions other than a threat to life or freedom would amount to persecution.  The delegate . . . must have found that he suffered a deprivation of liberty for a Convention reason –

The case is, of course, decided on the basis that the conclusions were not reasonably open but, in our respectful submission, there is an articulation there that the Convention accepted as a foundation stone a threat to life and freedom as being persecution.  The development of the extension of harm into other areas was explored by Justice McHugh in Minister for Immigration v Haji Ibrahim 204 CLR 1, in particular commencing at page 18, paragraph 55. Now, his Honour notes that not all discrimination amounts to persecution - paragraph 55:

The Convention protects persons from persecution, not discrimination.  Nor does the infliction of harm for a Convention reason always involve persecution.  Much will depend on the form and extent of the harm.  Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution –

and, in our respectful submission, what his Honour is addressing there with the collocation of the description “unjustifiable imprisonment” is a recognition that imprisonment may, and often will, bear an entirely innocent character and it is impossible before coming to persecution to isolate the justification from the harm.

His Honour goes on at the top of page 19 to refer to selection of – selective harassment.  Just to identify for your Honours, paragraphs 50 through 58, his Honour there deals with the common thread linking Article 1A by reference to Chen Shi Hai and a judgment of Justice Burchett in Ram, approved by Justice Gummow in Applicant A, in 58, noting that it is more than the “infliction of harm”.  At 60, his Honour Justice McHugh identifies harm in the context of:

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”.

Then his Honour comes to the observation that:

harm or threat of harm will ordinarily be persecution only when it is done for a Convention reason and when it is so oppressive or recurrent that a person cannot be expected to tolerate it.

His Honour at 65 identifies a definition of persecution by a number of elements observing that it is directed to:

·          unjustifiable and discriminatory conduct . . . 

·          an interference with the basic human rights . . . 

·          country of nationality authorises or does not stop . . . 

·which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it –

Now, immediately one sees in that attempt to formulate persecution, the intersection of a number of aspects, only one of which is harm and the test of oppression or likely to be repeated such that the person cannot be expected to tolerate it.  In effect, the Minister seeks to introduce that last dot element as a qualification of the definition of “threat to liberty” in section 91R(2).

Now, what we get out of that context is a couple of propositions.  First, that the right of liberty is a very high right – right of a very high order; second, and importantly, it is often and usually imposed by the State and that is very material for the questions of State protection which is inherently an essential part of the aspect of persecution.  Thirdly, it may be interfered with on a principle and justified basis. 

Those characteristics and particularly that it can be imposed by the State and it may be interfered with on a principled and justified basis are dealt with in 91R but not 91R(2).  Section 91R(2) has a different focus.  So the principal area of debate was not threats to life or liberty which had been identified in Chan but the interference with other rights and it was really directed to those other economic and social rights and physical rights to which 91R(2) was to do the most work.

It was in that context that 91R was enacted.  In our submission, 91R represents a significant departure from the position that obtained prior to its introduction in a number of respects, and that primacy should be given to the text as the surest guide to its meaning.  The first significant aspect of departure is that it disaggregates the aspects of Article 1A.  If your Honours turn to the text of 91R(1), your Honours will see in (a) it refers to – sorry, in the chapeau to 91R(1), the Act:

does not apply in relation to persecution for one or more of the reasons mentioned in –

Article 1A unless, firstly, the Convention reason has to be “essential and significant”; secondly, the persecution has to involve “serious harm”; and thirdly, it has to involve “systematic and discriminatory conduct”.  Now, that paragraph (c), of course, is really directed to questions which will play a large part in liberty cases about whether it is engaged or a result of failure of State protection, it is a result of an endemic practice, it is not random, and the like.  When one comes to 91R(2), in our submission, it is declaratory of the instances of serious harm, at least in the paragraphs that are identified.  We submit that the text of 91R is both clear and controlling in this case.

FRENCH CJ:   Now, insofar as it relates to the requirement that “the persecution involves serious harm to the person” and in its application to liberty, do you say that the approach ‑ that the construction goes beyond or provides a greater protection than was available under the Convention?

MR NIALL:   In our submission, it is concordant with the Convention but it may ‑ because it defines as a threat to liberty as the critical issue, it may be broader.  It may have a potential broader operation at the identification of harm because the decision‑maker is not required to evaluate the seriousness of the threat to liberty.  But in practical terms, when one synthesises all of the aspects, it will result in no significant departure because the critical question would be things like systematic and discriminatory and the like.

FRENCH CJ:   Having regard to what Justice North said, particularly at paragraph 44 – and I am reading it of course in context – does his Honour posit, on your approach to the construction – your characterisation of 91R, a protection that is broader than that available under the Convention, absent 91R?

MR NIALL:   In our submission, no, it is consistent because in a sense 44 introduces on the question of liberty this quality of assessment, but the way we submit both the Act and the Convention would apply, you would ask is there a threat or a risk to liberty, and the relevant construction is whether there is a threat – a risk of a loss of liberty.  So it is not every infringement of the right to freedom of movement, but it is a risk to loss of liberty and loss of life, and that is a restriction.  Secondly, it would not include a de minimis breach of any threat or loss of liberty.

BELL J:   But it would include any loss of liberty that amounted to false imprisonment for the purposes of the tort.

MR NIALL:   A complete restriction or detention would amount to a loss of liberty in this scenario.  It is difficult to entirely bring together practical examples in this case because when one asks is there a false imprisonment tort or is there a loss of liberty at the airport one is inevitably immediately driven to questions of why and in what context.  Being required to remain at the airport for a period of time may not be a loss of liberty, because one arrives at the airport with certain restrictions on your movement, but that could be completely contrasted so you are not losing liberty by being asked to detain during passport control.

If you are stopped and questioned in the street, you are not losing your liberty, but there may be restrictions on your freedom of movement.  The independent reviewer here drew a distinction between stopping and questioning, for example, and detention.  In our submission, that would be a distinction between a loss of liberty – when you are being taken to a place of detention or a place of interrogation by the authorities, that would be a loss of liberty.  In looking at the text of 91R, one sees:

a threat to the person’s life or liberty –

“threat” meaning “risk”, and it is a risk that the person’s life will be lost or that his or her liberty will be lost.  It is not any interference with liberty.

KEANE J:   When you put the matter that way – and in your submissions you emphasise the collocation of “threat to life or liberty” – when you put the matter that way and speak of loss of life as being placed on the same level of seriousness of harm as loss of liberty, is not that implying that when one speaks of a threat to liberty, we are speaking of something very catastrophic, not just an interference with the right to go about one’s business as one sees fit.  One is speaking of something very, very serious indeed.

MR NIALL:   Yes, it is serious, with respect; we would accept that, but not ‑ ‑ ‑

KEANE J:   Not serious because liberty is so sacred in some general ideological sense, but serious because it is serious of the same order of seriousness as the loss of one’s life.

MR NIALL:   We would submit that it is reflecting that those two rights or interests – the right to life and the right to liberty – are given the special status, and answering whether they should or should not is not usefully, with respect, measured ‑ ‑ ‑

KEANE J:   No, no, the point is they are.  They are treated.

MR NIALL:   As they were in Chan by the Chief Justice and Justice Dawson as well accepted that a threat to freedom and a threat to liberty were fundamental to the operation of the Convention.  We, for our part, make the submission that, provided there is a risk in the relevant sense described by VBAO in this Court of a loss of liberty, then that is an instance of serious harm.  One does not qualify it by saying “Is it a significant loss of liberty?” or “It will only become a loss of liberty if it is a significant or serious loss of liberty”.

KIEFEL J:   Well, you have relied in your submissions upon the fact, as the judge below did, that unlike the other instances specified in subsection (2), paragraph (a) in its reference to “life or liberty” is relevantly unqualified.

MR NIALL:   We do.

KIEFEL J:   But the qualification in relation to “liberty” comes from the reference to “life”, as Justice Keane just said, does it not?  You do not need to say “significant”; it would make no sense in relation to “life”, and you do not need to say it in relation to “liberty” because the person drafting it has assumed that it would be understood in the same context.

MR NIALL:   In our submission, then one gets to the sort of analysis that Justice McHugh adumbrated in Haji Ibrahim when one asks, well, is it of a sufficient loss of liberty that could be reasonably expected to be tolerated.  Now, we make the submission that that additional qualification is the one that Parliament has identified, not for the decision‑maker to add onto the top, whereas, for (b) to (f), it is really directed to those questions of significant to the level that Justice McHugh is talking about.  There is a judgment by the Parliament that a loss of liberty is serious harm, and it is not diminished by the fact that it could be worse and there could be a loss of life.  The two stick together as high‑order rights that are respected.

KIEFEL J:   Well, you have accepted in your outline at paragraph 4, I take it, that any loss of liberty will not suffice because you have accepted that de minimis loss of liberty would be excluded.

MR NIALL:   That is so.

KIEFEL J:   So where is the line drawn?

MR NIALL:   There may be an evaluative judgment at that level of is it de minimis to the point of entry whether there is a loss of liberty, but not once having found a loss of liberty beyond that level of evaluation one does not then grade it to point of significance.

KIEFEL J:   But accepting that there has to be some evaluation, as you have just said, are you not driven then to find some kind of indication in the statute itself to what is meant by liberty and the extent to which its deprivation is spoken of?

MR NIALL:   One does and ‑ ‑ ‑

KIEFEL J:   But you say nothing is gained by the reference to “life” in the same paragraph.

MR NIALL:   Well, an acceptance that the two rights are high order and have been accepted by the parties to the Convention as being worthy of protection.

KEANE J:   But it is not about high order rights, it is about high order harm. 

MR NIALL:   That is so, with respect, and the relevant harm is loss.

KEANE J:   Loss of liberty of the same order of seriousness as loss of life.

MR NIALL:   In our submission, that is not the way one should construe (a) because one would only get a loss of liberty which would be to the point of sort of catastrophic result of the loss of life.  They are not readily to be equated.

KEANE J:   Or detention – arbitrary detention; a loss of liberty in the sense of exposure to arbitrary detention.  Bearing in mind that these provisions probably do have something to do with the experiences in Europe in the death camps and the gulags, treating them as equivalent harms is not surprising.

MR NIALL:   Although the arbitrary loss of liberty is an essential aspect, or can be considered to be an essential aspect of the overall analysis of whether there is persecution and loss of state protection, but it comes in this particular statutory formulation under the question of whether the persecution involves systematic and discriminatory conduct.  That is why here there was a finding of arbitrary arrest and detention.  In our submission, that was significant. 

Now, an arbitrary detention of six months as part of systematic and discriminatory conduct entirely for a Convention reason with no justification by reference to appropriate and adapted laws of general application or state interest would plainly be a threat to liberty, plainly be a deprivation of liberty, even though one does not measure it as whether it – how it would equate or where it reaches on the continuum to the position where it could have been worse, the person could have lost their life.

FRENCH CJ:   You cannot disentangle, can you, the risk from the harm itself in a sense that when you are considering whether there is a risk to liberty you may be considering anything in a spectrum from a low risk of some major impairment of liberty to a high risk of some minor impairment of liberty perhaps repeated arrests and interrogations and so forth.  So the risk assessment itself involves some evaluation, does it not, of the impairment?  You are looking at, really, what they call – they used to call, I think, the “expectation value” of the harm that may be inflicted if the person returns to the country of origin.

MR NIALL:   Certainly threat, as construed by this Court in VBAO, was directed to the risk of the harm eventuating.  In our submission, that probability question does not really help one analyse the content of the interest that has been infringed, or lost, on our construction.  Ultimately, it is the question for the decision‑maker to evaluate whether there is a risk of loss of liberty.  Whether it is of short duration, is likely to be highly material to other questions but is not to be equated with some superimposing on (2)(a) the sort of restriction that Justice McHugh applied in Haji Ibrahim which was intolerable or so oppressive.  Parliament is declaring that a loss of liberty is oppressive.

BELL J:   Given the difficulties of definition of the concept of liberty and given, I think, your acceptance that on the construction for which you contend 91R, in this respect, enlarges the scope of Convention protection, why would we, against the background, including the extrinsic materials, come to that conclusion?

MR NIALL:   Because the qualifications on the loss of liberty will still operate in a way which regulates the outcome in the way it will inevitably be undertaken.  By that I mean that it is very difficult to look at result, for example, by asking whether this particular aspect of serious harm is anomalous to other jurisprudence when the jurisprudence is not directed to serious harm in this disaggregated way.  It is relevant to persecution.  So, reading (2)(a) in the way which the text naturally reads, in our respectful submission, does not enlarge the result.  It simply identifies that that will be an instance of serious harm which would need to be examined by reference to the principles which normally apply to detention cases.

BELL J:   But, in the upshot, there is an increased area of operation over the operation that would apply if one were to use Justice McHugh’s analysis of the meaning of the concept of persecution.

MR NIALL:   We would submit not.  For example, Justice McHugh in Haji Ibrahim uses the description “unjustifiable imprisonment” ‑ in that case, the question as constituting persecution, so there is no enlargement to that extent.  Certainly, taking Grahl‑Madsen as a sort of starting point, which is in the materials from his text of 1966, at page 193, there writing in 1966 the author said:

It is generally agreed that ‘a threat to life or freedom on one of the grounds stated in the Statute and the Convention will always be persecution’.

Then the author identifies the area of debate where he says in the middle of page 193:

considerable disagreement –

between, for example, the Weis – the liberal school – which is:

that ‘other measures [than a threat to life or freedom] in disregard of human dignity may also constitute persecution’ –

would be one view and then:

Posed against these liberal views is a restrictive school, ably represented by ZINK, who interprets ‘persecution’ so as to mean only deprivation of life or of physical freedom.

So that analysis is consistent with what Justice Dawson said in Chan, so it does not represent an enlargement, and at page 199, at about point 8 on the page, after considering a variety of cases in this area of discourse, Grahl‑Madsen says about eight lines from the bottom:

Here it suffices to point to the fact that what really causes the Courts concern in these cases is not the laxity or the severity of the sanction in itself, but the reasons why the sanction is imposed.

BELL J:   But then if one goes to the analysis of 201, it is suggested that it remains an open question:

whether deprivation of physical freedom for shorter periods may constitute ‘persecution’; however, deprivation of liberty for 10 days or less has been deemed not to amount to ‘persecution’ –

MR NIALL:   That is a passage that – there is authority at that level, that 10 days or less has not been deemed to be not to be persecution.  But, in our submission, it is really explicable as – explicable detention of 10 days or less or justified imprisonment of 10 days or less.  That is the way, as we say in our submissions in footnote 63, that it has been understood by commentators including Hathaway that it really is relating to emergency detention of 10 days.  So, that short order of detention may readily be explicable, in the example of the American case, where the law had 24 hour detention. 

So, we do submit that there is no significant departure in saying that detention or loss of liberty represents serious harm.  That does not do any – is not inconsistent at all with the approach to the Convention, but even if it were, it is operating in a potential area of judgment which, in our submission, the Parliament has expressed in unqualified terms.  So, even if there existed some element of judgment and, in our submission, the judgment is really directed to justification rather than loss of liberty, it is a judgment that the Parliament has resolved in favour of a rule which is clear and, in our respectful submission, unqualified in its terms.

KIEFEL J:   Well, you rely upon it textually as unqualified except for the qualification you wish to introduce in relation to justification.

MR NIALL:   The justification is not a qualification on whether there is a loss of liberty.  It is a qualification on whether there is persecution which would become within paragraph (c) of paragraph 91R(1) ‑ paragraph (a) and (c). 

GAGELER J:   Does the proposition come down to saying that any non‑de minimis detention equals a loss of liberty within the meaning of 91R(2)(a)?

MR NIALL:   It does.  Then, the debate becomes, is there persecution?

GAGELER J:   Is the reference to Hathaway in your paragraph 6 a reference to Hathaway and Foster’s book, 2nd edition of The Law of Refugee Status?

MR NIALL:   Yes, it is. 

GAGELER J:   No doubt you have looked at what they say on this topic of arrest and detention at page 239.

MR NIALL:   Did your Honour say 235?

GAGELER J:   Page 239.  I take it that your approach simply rejects that analysis?

MR NIALL:   No, to the extent of the qualifications which are explained at 241:

the only question is whether it can be justified by reference to the standard of permissible derogation in the context of a “public emergency which threatens the life of the nation.”

So the analysis is really dealing with impermissible arrest and detention which allows one to say that not every arrest and detention constitutes persecution and again one is dealing with persecution dealing with a number of concepts in this area.

GAGELER J:   Well, I think the analysis is saying, at least on one fairly plain reading, that if one applies a human rights approach to the question of liberty or loss of liberty, detention that is justified by law, that is, as a legal basis in the relevant country, and which is not arbitrarily imposed, will not generally be a loss of liberty.  There may be other justifications, but that appears to be what is being said.

MR NIALL:   In our submission, it is will not constitute persecution ‑ ‑ ‑

GAGELER J:   I see.

MR NIALL:   ‑ ‑ ‑ rather than the narrower question of whether it would constitute serious harm.  So there may be no deprivation – or the right is inherently susceptible to qualification in terms of laws of general application which are non‑discriminatory.  But 91R(2) is not really directing itself to that point of inquiry, so that one does not, as the Minister submitted to the Court, look at laws of general application and justification in coming to the construction of paragraph (2)(a).  One gets to that when one approaches the persecution question.

FRENCH CJ:   So at paragraph 42 of his judgment at page 224 of the appeal book following Justice North’s quotation from the passage in Hathaway and Foster at 239, he is applying a test for persecution, not a test for serious harm?

MR NIALL:   That is so, your Honour.

FRENCH CJ:   Then what is the test he applies for serious harm?  What is the best statement of it in his judgment?

MR NIALL:   In a sense the question of what - whether there is a loss of liberty.  Now, his Honour’s analysis is really directed to the question, having found a loss of liberty, one then goes on to ask by reference to the qualitative assessment whether it is a serious or significant loss of liberty, and that is why his Honour does not articulate the content of the phrase “what is a loss of liberty”.  Having established a loss of liberty by reference to the detention at a place of interrogation, his Honour said that there is no further question for the purpose of serious harm.  That is why, at paragraph 19 of his Honour’s reasons for judgment at appeal book 217 his Honour approached it as being:

common ground that the reviewer first had to, and did, make an assessment of the risk of the threat to liberty materialising –

What we read that to mean is that his Honour said the parties accept there is a threat to liberty, but it needs to go through an additional filter.  That is why, at paragraph 23, his Honour, referring to the Minister’s submission at about line 39, recording the Minister’s submission that:

The threat to liberty referred to in s 91R(2)(a) must be seen in this context.  So, any threat to liberty requires more than occasional or temporary threats to liberty to qualify as serious harm.  Whether harm is so serious as to prevent a person from returning . . . requires a qualitative assessment of the threatened harm –

So, his Honour is really identifying, having found a threat to liberty, what does then one do with it?

FRENCH CJ:   Well, at 44, he says:

detention affecting the right to liberty . . . constitute[s] an infringement of that right.

That is a fairly uncontroversial statement.  The question is what constitutes serious harm?  The threat to liberty which constitutes – what is a threat to liberty which constitutes serious harm?  Does that mean he is equating serious harm with any detention infringing the right to liberty?

MR NIALL:   If his Honour is identifying any infringement of the right to liberty, we would respectfully submit it is really directed not to impairment short of loss of liberty, so that one does not get a restriction on the freedom of movement, for example, as a loss of liberty.  But provided there is a loss of liberty, and the threat is a risk probability, whatever the relevant standard is – in this case, the risk – there is an instance of serious harm.

FRENCH CJ:   All the other considerations come in under the head of “persecution” by reference to the matters he has put in 42?

MR NIALL:   That is so, which is entirely in accord with the Convention, and entirely in accord with the concept of Article 1A.

KEANE J:   Mr Niall, when one looks at 91R(2) one’s eye goes to (b):

significant physical harassment of the person –

Does that have some significance in relation to the proper interpretation of (a) in the sense that it does not take a lot of imagination to see what your client was subjected to as instances of physical harassment, yet there does seem to be some awkwardness in fitting it within (a).  Does (b) tell us anything about the proper scope of (a)?

MR NIALL:   Where there is harassment which is not accompanied by a loss of liberty which one can readily feature, and the stopping and questioning might be an example of that which the reviewer identified, one needs to look at whether that is significant. 

KEANE J:   Well, the stopping and questioning would be an interference with his liberty.  It would be harassment but it would also be interference with his liberty because he is being stopped.

MR NIALL:   We would submit that might be an interference with freedom of movement but not a loss ‑ ‑ ‑

KEANE J:   An aspect of liberty.

MR NIALL:   An aspect but, in our submission, (a) is really directed to detention, incarceration, imprisonment.  Here, the reviewer looking at a couple of aspects - if I could just place the construction in the context where, at appeal book page 7 about six dot points from the bottom:

·The Basij were based in a mosque and had places for interrogation within the village, where he had been taken as much as 30 to 40 times for periods in excess of 2 hours; once for 48 hours and often for 12 hours; he was released after bribes were paid by Iranian citizen friends.  He might be detained daily, weekly or monthly.

·Whilst he has never been physically assaulted, he has been questioned interminably about his lack of identity and the fate of his parents; he has been shouted at, sworn at . . . was given no food or water . . . by either the police or the Basiji.

There is a finding at page 10 of the appeal book at paragraph 30 about the nature of the Basij being a:

religious/political group . . . which pervades Iran and is supported by a network . . . charged with the protection of Islamic values, which are fundamental to the Iranian political system –

and it was in that context that the findings at 80 and 81 were made.  Coming to 82 while your Honours have the appeal book open at page – appeal book 16, in our submission one sees how the reviewer approached 91R(2)(a), (b) and/or (c), referring to it at guidance in paragraph 81 where the reviewer says:

the questioning, detention and abuse there is a real chance the claimant will be subjected to, is sufficiently significant to amount to serious harm –

What we read that as to being is a qualification on the loss of liberty that was required to be established by an applicant by reference to the concept that it be sufficiently significant.  Then, over at page 18, paragraph 99 of the reasons, the third dot point:

There is a real chance that he will continue to face arbitrary questioning and detention . . . in the reasonably foreseeable future.

In our submission, that is detention of the type that he had been subjected to.  So not just stopping and questioning, but being taken to a place of interrogation for a period of time – varying periods of time and with a high degree of frequency.

Now, when one looks at paragraph 81 of the reasons, one sees that the three qualifications which the reviewer applied are frequency, length of detention and treatment he will receive.  In our submission, none of those are directed to the question about whether there is a loss of liberty but a different question is whether the loss of liberty is sufficiently significant or serious as to justify the conclusion that it fits within 91R(2)(a).  That is, in our submission, where the reviewer applied erroneously, we submit, 91R(2)(a) and that is why paragraph 45 of the reasons of the primary judge at 224 were correct.

We have set out in our written submissions some aspects of the context which I will not elaborate but can we just make the submission that we make in point 7 of our outline of oral submissions that some caution needs to be adopted by a contextual analysis which is too broad - for example, the European cases, the American cases, for two reasons. 

The European cases, for example, apply a different rule.  There is a directorate and it is the construction of the directorate which the Europeans apply.  Here, we have 91R(2).  It is not of great assistance as context to construe 91R(2) by reference to a different expression of the rule, or a rule, in a different jurisdiction.  Secondly, as I have submitted probably a number of times, a lot of the authorities are directed to the integration of persecution rather than just a question of serious harm. 

Finally – and it is the point we make in 7.1 – there is, in our submission, some limitation on the context, bearing in mind that serious harm is not a Convention term or definition.  It is an explanation of persecution as an element of persecution.  So it is quite different to cases like Applicant A where the question was “social group” which is a definition in the Convention, or “well‑founded fear” in Chan.  We are dealing with one level of attenuation of Article 1A and Parliament has determined how that attenuated concept should be addressed. 

There is, in our respectful submission, given the declaratory purpose, somewhat of an irony to use Convention jurisprudence in other jurisdictions to determine what Parliament meant when it determined what serious harm was to be. 

KIEFEL J:   Except that Parliament says that it has looked to accepted Convention definitions.  The question is whether they are, I suppose.

MR NIALL:   One looks at the judgment that Parliament has made.  The best indicator is not to start with the Convention jurisprudence and then work back - that is what Parliament must have meant, because Parliament was declaring – but one looks at the text.

KIEFEL J:   But the extrinsic materials I thought had indicated that that is what Parliament at least thought it was doing.

MR NIALL:   The best indicator of what it understood to be the approach was the differential text in (a), (b), (c) and (d) in the text of the provision.

BELL J:   But those are merely instances and if one goes to (1)(b) one sees the expression “serious harm” and that is an expression that has a certain freight within international law.

MR NIALL:   It does, although “serious harm” in the context of “liberty” is very difficult as an integrated – as a disaggregated concept, and that is why the weight that the Minister seeks to put on it is misplaced, because our learned friend’s submissions really are a criticism of Justice North describing persecution.

FRENCH CJ:   One does not look to a term which is defined to determine its meaning independent of the definition, but this is not quite that case.  This is a category of harm into which these various instances are placed.  It is not quite the same as a definitional sort of bootstrap exercise.

MR NIALL:   We have given the reference in our submissions to Shin Kobe, the case where that problem is identified at defining the – that which is defined by the term.  But there is, in our respectful submission, although not an exact analogy, some danger in approaching what Parliament has determined in (2)(a) by reference to case law as to what constitutes serious harm, because it is declaratory in nature, not just in forming a general concept.

Certainly it is difficult to bring within the words of (2)(a) any particular qualification of seriousness.  Textually it would be somewhat awkward because it is not a significant threat.  It would be a significant – one has to really reorganise it quite significantly, whereas the significant qualification in all of the others look at the consequence, whereas (a) is directed to a slightly different semantic structure.

I have addressed, and we have addressed in writing, why we submit that the reviewer misapplied 91R(2) and I do not propose to say any more than to summarise the submission that there was an adoption of a test of a sufficiently significant loss of liberty which, in our submission, was misplaced.

Can I deal then with procedural fairness to conclude my oral submissions?  The critical question which divides the parties – in fact, the only question which divides the parties – is the construction to be given to paragraph 84 of the reasons of the IMR at page 16.  As we understand the submissions for the Minister, it is this, that paragraph 84, when the reviewer says that:

I do not consider such questioning and detention . . . to be discriminatory for a Convention reason –

as based on a rejection of a “particular social group”, whereas our reading, accepted by Justice North at paragraph 84, is that the reason that the detention was not for a Convention reason was because it was a law of general application, appropriate and adapted based on the analysis in Applicant S.  Now, in order to make good that submission, can I start with paragraph 56?  That is where the reviewer records the particular social group formulations, firstly, as:

a member of a group described as Stateless persons; undocumented Faili Kurds living in Iran; stateless Faili Kurds; or, less specifically, undocumented refugees who are living in Iran.

So there were different formulations of the social group, none of which were simply a person that lacks identification papers.  They were all more qualified than that.  When one goes to paragraph 79 there is an articulation by the reviewer of:

feared detention by the Basiji as a result of his race and lack of identification papers –

Well, that is not entirely accurate.  It was for race and membership of a particular social group as formulated or as claimed in 56.  Then when gets down to paragraph 84 - and the only analysis of whether or not there was a particular social group is, the reviewer says:

Even if people without identification papers could be regarded as a particular social group (which I do not accept) –

but that was not the particular social group that the applicant claimed.  It was not a rejection of the PSG but a particular social group claim.  So one cannot read paragraph 84 as saying you fail because it was not because you were a member of a social group. 

The only reasonable reading of paragraph 84 is that it is not discriminatory for a Convention reason, but because the questioning in detention is not inappropriate in the sense discussed by S v Minister 217 CLR.  That is the way Justice North dealt with it, we say correctly, at page 233 – perhaps starting at 229, his Honour explains his conclusion as to what the reviewer was saying at paragraph 84, about the middle of paragraph 64:

the reviewer found that any detention would not be for a Convention reason because the indiscriminate questioning and detention by the Basij, brought about by a lack of identification papers, would not be inappropriate in the sense described in Applicant S.  There is no other reason advanced as to why the questioning and detention would not be for a Convention reason.

His Honour identifies the relevant passages in Applicant S at paragraph 67.  I will not read them to your Honours, but they are directed to the appropriate and adapted question, and the reasoning, fairly read, of the reviewer was the detention was not discriminatory for a Convention reason because it was pursuant to a law of general application which was appropriate and adapted.

KIEFEL J:   Is the alternative that the reviewer was saying that the reason was not for race, religion, nationality, membership of a particular social group, but because he lacked identification papers, and no more than that?

MR NIALL:   Sorry, your Honour. 

KIEFEL J:   That it did not fall within one of the stated reasons.  The fact that he was – and what drew the attention and potentially discriminatory conduct was because he lacked identification papers and that was not one of the reasons stated in Article 1A(2).

MR NIALL:   In our submission, the reviewer simply does not deal with it on that basis.  It is really putting a much narrower question by reference to identification as a particular social group, without addressing the claimed social group.

KIEFEL J:   Well, he is discounting the social group but says ‑ ‑ ‑

MR NIALL:   But that was not the social group that was claimed.

GAGELER J:   What about the third dot point of paragraph 99?  You read the first part of the sentence but does the entire sentence there shed light on what was being said in paragraph 84 - the words “for want of identification documents”.

MR NIALL:    The position at 83 was that the reviewer identified some indiscriminate stopping and questioning.  So that may be beyond the reach of the Convention.  Then it said detention will follow if the person stopped is suspected of being involved in ill activity or presents some threat to state security which then feeds back into the combination of the particular social group – one or more, namely, being a stateless Faili Kurd or a Faili Kurd who is undocumented and living in Iran.

The reviewer short‑circuited that analysis without the necessary findings because it sought to reject the claim on the basis of Applicant S.  If that is the construction of the reasons, then the Minister does not seek to defend the breach of procedural fairness.  If we are right on the question of procedural fairness, if your Honours turn to the orders that Justice North made at appeal book 237, the Federal Court made a declaration identifying two errors:  one, “failing to apply the correct test”, and that is the conclusion at paragraph 45; and two, “by failing to accord the applicant procedural fairness in the consideration” of 91R(1)(a).

If there was a denial of procedural fairness but there was no error in terms of the assessment of serious harm, in our submission, the denial of procedural fairness could still have affected the assessment.  So that if we win on ground 2 we could still maintain the second declaration.  We put that in writing.  Unless I can be of further assistance to the Court, they are the submissions of the first respondent.

FRENCH CJ:   Yes, thank you, Mr Niall.  We might just take your outline, Mr Prince.

MR PRINCE:   I regret to say that I do not have an outline.  I am entirely at fault for that and I indicated that to the Registrar when they asked at the outset.  I apologise unreservedly to your Honours.  Yes, I could do it over lunch, your Honours.

FRENCH CJ:   Yes, all right.  We will adjourn until 2.15.

MR PRINCE:   Thank you, your Honours.

AT 12.41 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.13 PM:

FRENCH CJ:   Yes, Mr Prince.

MR PRINCE:   Thank you, your Honours, and thank you for the indulgence over the break in relation to the outline of oral argument, which I hope your Honours now have.  As your Honours will see from the outline, I propose to deal with the matter in two steps:  one is the relevant factual context in relation to WZARV, and the second are the issues of construction. 

In terms of the relevant factual context, this case, WZARV, is slightly different to WZAPN in a couple of ways.  On the one hand, there is greater clarity about the risk of detention.  On the other hand, that detention is likely to be for a shorter duration.  That is the essential factual difference.  Your Honours will see that there is no issue that the appellant at the time of the assessment was a 24‑year‑old man of Tamil ethnicity, born in a northern province of Sri Lanka.  He was required to undergo a day’s physical training with the LTTE at one point.  He had been detained in the past for eight to 10 days and released after his father‑in‑law had paid a bribe to CID officers, and the references are there. 

The appellant held two positions of employment – firstly, as a security guard on assignment to the United Nations High Commissioner for Refugees in Sri Lanka, and then as a de‑miner – that is, a person who takes land mines out – for a Swiss non-government organisation, and the references are there.

The issues in WZARV in relation to the rejection of the claims for a well‑founded fear of persecution upon return to Sri Lanka at the airport, if I can put it that way, were dealt with, and the Minister accepts that the reviewer found that there is likely to be detention of the appellant by the State Intelligence Service and the CID at the airport upon his involuntary return to Sri Lanka for a brief period.  That appears to have been viewed as being a matter of hours because the Tribunal took the view that it was likely that the police checks would only take a matter of hours, rather than days or months, as in the potential of other categories.

Accordingly, on that basis, the reviewer found that there would be no serious harm.  The Minister accepts, and there is a reference there to paragraph 16 of the Minister’s written outline, that the applicant’s case is that he will have his liberty interfered with for a relatively short period of time at the airport.  That is significant because there does not seem to be an issue between the parties that there will be an interference in liberty, the only issue is the duration of the interference and the liberty and whether or not that breaks the nexus, as it were, that 91R(2)(a) might otherwise supply between serious harm and deprivation of liberty.

The Minister accepts that on the basis of a finding that the deprivation of liberty at the airport for a matter of hours would not constitute serious harm is based on an implicit reasoning that detention for such a period of time would not constitute serious harm and there is no issue about that. 

There is no other issue in WZARV, unlike WZAPN, about independent or different bases upon which the reviewer could have dealt with – sorry, did deal with, the issues arising from the detention upon involuntary return to Sri Lanka other than the issue of serious harm.  That is that in that sense this case is better confined in terms of throwing up the issue of what serious harm means and, in turn, what threat to liberty means.

As I said, there is no issue that the captivity at the airport would be voluntary or in the category of near voluntary questioning and I will come back to that in due course.  Perhaps in answer to your Honour Justice Keane’s question earlier to my friend about the seriousness of deprivation of liberty because it may be, as your Honour the Chief Justice noted in exchange with my learned friend for the Minister, that liberty means more than being locked up, but as a very minimum and at the core of liberty, is freedom from captivity, in my submission.

Captivity is the most serious form of deprivation of liberty that one can imagine and that, in answer to your Honour Justice Keane’s question about the correlation between the seriousness of threats to life and threats to liberty in section 91R(2)(a), in my submission, supplies the answer.  The question of duration does not, and if the question of duration were to supply the answer to the issue of the seriousness of the deprivation of liberty rather than the fact of captivity, in my submission, a lacuna would open up in the legislative regime which is not intended and there would be the imposition of a qualification or a significance or a qualification which simply does not appear on the face of the legislation.  I will come back to that in a moment.

Your Honours will see – and this ties in to the point about the seriousness of captivity at item 5 in the outline – there is a range of references to country information which was apparently accepted by the reviewer as being reliable in which there is a persistent pattern of torture and other mistreatment of detainees by authorities in Sri Lanka and that perpetrators enjoy immunity.  I accept that the reviewer made a finding, or it appears that there is at least an implicit finding that it is not likely that my client would be harmed in that point of detention or captivity.

However, in my submission, it is relevant to the issue of the seriousness of captivity because, whilst the person’s will is overborne to such an extent that they are captive of another, they do not have any means of defending themselves, in my submission, against other forms of violence upon them.  They have no means of escape.  They are completely, in my submission, at the will and whim of their captor.

Whether or not their captor is polite and gentle to them or whether or not their captor exposes them to physical harassment, in my submission, does not diminish the importance of the person’s liberty and freedom from captivity.  In my submission, that is what section 91R(2)(a) is, at least, directed to.  Your Honours will see Part B of the submissions, part of which I have already strayed into to deal with the issue of construction for the purposes of 91R of the Act.

FRENCH CJ:   So do you accept a sort of de minimis cut‑off in respect of detention?

MR PRINCE:   Not in respect of detention, no, your Honour.  I part ways from my learned friend for WZAPN in that way because captivity – there is de minimis in relation to liberty.  For example, if one does not have the liberty to listen to loud pop music, for example, that is not ‑ ‑ ‑

FRENCH CJ:   If you are detained for half an hour that still falls within the category of serious harm.

MR PRINCE:   In my submission, that is right.  It does not lead to the absurd results that the Minister contends for for a number of reasons.  First of all, it is internally consistent because a person who is subject to the will of a captor does not know how long they will be – at the time that they go into captivity they do not know how long they will be in captivity for.

FRENCH CJ:   You rely on the other criteria as control mechanisms, do you?

MR PRINCE:   Yes.  There is nothing in the structure of 91R(2) that suggests that multiple indicia, or multiple incidents of serious harm need to be present.  Any one of those incidents of serious harm, in my submission, involves serious harm.  In terms of dealing with the potential for absurdity of results, there are other mechanisms within the definition of “persecution” in 91R that address that.  For example, if a person is kept in a room at the airport for half an hour until their passport is checked, that is almost inevitably going to be pursuant to a law of general application which is necessarily adapted to the purposes of the State.

FRENCH CJ:   But would not seem to answer the description of “systematic and discriminatory conduct”, I suppose.

MR PRINCE:   Precisely.  So there are other mechanisms by which the absurdity of results of a strict approach to liberty qua captivity in 91R(2)(a) can be avoided.  In another instance, for example, the issue would never arise if a person was asked if they would wait for half an hour while their passport was being checked and consented to that, much like a person being approached on the street by a policeman and asked questions.  It is not until the policeman insists that they have no choice but to stand there and to answer the questions that one moves into a situation of arrest. 

So there is no reason, in my submission, to read in a de minimis exception, whatever it might mean, to the objective question of whether or not a person is subject to the captivity at the hands of another.  It is sufficiently serious on its own, regardless of duration, to be consistent with 91R(2)(a) being directed to serious forms of harm to a person.

BELL J:   If there is a risk that a person on arrival in the country will be detained for a period of say half an hour for a Convention reason, that is enough to answer persecution.  Now, would that ‑ ‑ ‑

MR PRINCE:   I am sorry, your Honour, subject to this - as long as it is systematic and discriminatory.  There are other ‑ ‑ ‑

BELL J:   Yes, well, let us assume.  Systematic and discriminatory treatment for a Convention reason involving the likelihood that the person will be detained for half an hour while some checks are conducted on their arrival, nothing else.  That is sufficient to satisfy the requirements of 91R.

MR PRINCE:   Subsection (2)(a).  If the other elements are supplied ‑ ‑ ‑

BELL J:   Well, it satisfies the requirements of the provision.

MR PRINCE:   Yes, your Honour.

BELL J:   To that extent, 91R has a beneficial operation, does it, from the point of view of the asylum seeker ‑ ‑ ‑

MR PRINCE:   Yes.

BELL J:   ‑ ‑ ‑ because it, you would accept, extends the conventional understanding of persecution for the purposes of the Convention.

MR PRINCE:   Yes. 

BELL J:   Yes.

MR PRINCE:   My answers to your Honour’s questions are subject also to this.  It may be that the detention or the captivity is for a Convention‑related reason but nonetheless is pursuant to a law of general application which is necessary and adapted to the purpose and then that may not be persecution.

BELL J:   Put that to one side.

MR PRINCE:   Yes.

BELL J:   Let us assume the other conditions of 91R.

MR PRINCE:   Yes, that is so, your Honour, and indeed, that ties into the pre‑section 91R approach described by his Honour Justice McHugh in Haji Ibrahim (2000) 204 CLR 1 at 18, and your Honours will see that his Honour said that:

unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution –

His Honour does not give any indication of a minimum duration of such a circumstance, and his Honour addresses each of the other components of persecution which one finds disaggregated in section 91R.

BELL J:   The understanding amongst the commentators in terms of the character of the deprivation of liberty sufficient to constitute persecution is the matter I was directing your attention to.  In that regard, I think you accept that this involves an extension.

MR PRINCE:   Your Honour, the only commentator that really descends into issues of duration of captivity is Grahl, I think, in 1966, before Article 9 of the ICCPR.  There does not seem to be any other support for the proposition that “serious harm” – I think this was addressed by my learned friend for WZAPN – is qualified or quantified or subject to a minimum time requirement.  As my learned friend in WZAPN correctly pointed out, the American cases really do concern whether or not a period of detention of 24 hours is pursuant to a law of general application necessary and adapted to the purpose which it addresses, for example, emergency attention.

This is, of course, the reason why Parliament – and this construction provides coherency in the law, because Parliament goes to great lengths to ensure that when a subject’s liberty is being interfered with in any way for whatever period of time, that that is done by way of lawful authorisation under the law passed by Parliament.  It would be extraordinary to suggest that there was latitude given to officers of the State in this country to detain a person, or to make them captive without a proper lawful basis for doing so. 

It could not be suggested, in my submission, that such action by one of the coercive capable members of the state would not amount to serious harm in the absence of lawful justification.  Indeed, your Honours will have seen in the written outline of submissions reference to Goldie’s Case and the importance of making sure that there is lawful justification for detention, even if it is for a relatively short period of time.

FRENCH CJ:   That was a wrongful imprisonment case, and the passage quoted was in the context of assessment of damages.

MR PRINCE:   Yes, that is right.  I accept that it is not directly on point, but the analogy and the coherence in the law is quite striking because the inquiry in those circumstances is whether or not the interference with the liberty is justified under the law.  If it is, then there is no cause of action.  If it is not, then there is a cause of action.  There is damage at common law, and that damage is not subject to a threshold period of interference with liberty prior to assessment of damages, for example. 

There does not seem to be any indication in the law at large that there is a countenancing of unjustifiable or arbitrary detention as something which does not involve serious harm to people, and when I say “detention”, I mean captivity.

BELL J:   What distinction do you draw?  You use this rather emotive term “captivity”.  What are you capturing by that that is not captured by detention?

MR PRINCE:   In my submission, they are synonymous.  The word detention ‑ if captivity is possibly emotive, detention is unfortunately anodyne but the effect remains the same, and the reason I use the term “captivity” is because one of the principal, or foundational definitions of liberty, is freedom from captivity.  As a matter of fact ‑ and in this case there is no issue that the person upon arrival in Sri Lanka would be subject to captivity at the hands of another, for whatever period of time.

Your Honours, I have set out in the oral outline, if I can just return to it for a moment, that there are a number of propositions which appear not to be in dispute in light of the way the matter has fallen out.  The first is that section 91R is declarative of the Parliament’s view of the construction of the Refugees Convention and that is the purpose of 91R is to prevent extraneous and differing constructions of the obligations under the Refugee Convention which may be at odds with the Parliament’s understanding of those obligations as they have expressed in section 91R.

So, what flows from that, in my submission, is that there is not a back door to 91R whereby reference can be made to the approaches to construction to Article 1A(2) which are different to, or at odds with, what a proper construction of 91R would deal with in its terms.  That is, to engage in a process like that, as the Minister is seeking to do, would be at odds with what is accepted as the parliamentary intention to express what its view is of what those obligations are and to prevent courts from taking a different view of those matters or at odds.

So that the notion that there might be some anterior exercise of dealing with some different meaning of Article 1A(2) of the Refugee Convention, prior to embarking upon a consideration of section 91R of the Act, really is at odds with the scheme of the legislation.  It is also at odds with the way in which many of these decisions are framed, that is, if that approach were to be adopted then there may be an unintended consequence in opening up questions of validity of decisions which do not engage in such a, in my submission, artificial, two‑step process, whereby an interpretation at large of the Refugee Convention meaning, that international law is undertaken, an assessment is made and then 91R is applied. 

Section 91R plainly directs an officer who is completing an assessment to make the assessment of Australia’s protection obligations in light of what has been expressed by Parliament and declared by Parliament to be its understanding of the meaning of Article 1A(2) and the Convention, in my submission, generally.

It does not seem to be in issue that 91R disaggregates components of the term “persecution” for the purposes of Parliament’s view of the meaning of persecution.  My learned friend, for the Minister, accepted that “serious harm” is a separate component to other issues such as lawfulness of detention – whether it is arbitrary, whether the detention is for a Convention reason, whether the detention is lawful, for example.

In my submission, that concession is correctly made and significant to the case because when one accepts that the question in these proceedings is confined to whether or not the reviewer took a proper approach to the meaning of serious harm for the purposes of the Act and did not address those separate considerations in the meaning of persecution under section 91R, that will be enough to establish the relief my client would be entitled to a declaration that that construction, or that approach, by the reviewer had miscarried or was wrong because it would have an obvious impact on the acceptability or ability to rely upon that decision in circumstances where such an error is present and operative.

It seems to be common ground that the term “threat” in 91R(2)(a) refers to actual risk of the event there described and does not qualify the nature of liberty or life.  That, in my submission, must be so because the cases concerning threat were addressed to whether or not the mere utterance of a threat was sufficient to meet that criteria or whether there needed to be a real threat.  That is, on an objective assessment by the reviewer or the Tribunal whether it was satisfied that there was a threat in the sense of a risk to liberty or life.  In my submission, that is a consistent approach to the reading of 91R(2)(a).

GAGELER J:   Do the words “threat to” mean risk of loss of, or do they mean something less?

MR PRINCE:   Yes, in my submission.  For example, one could imagine ‑ there does not need to be a loss of life in order to make 91R(2)(a), the first component, good.  It may be, for example, that a person is going to be returned to a place where it is likely – leave aside whether likely or real chance is the right nomenclature – but it is likely that they are going to have a revolver pointed to their head with a bullet in one of out of six chambers.  In my submission, that would be clearly a threat to the person’s life, whether or not the person ultimately died or not is immaterial.  In my submission, it would represent a threat to that person’s life.

In terms of a threat to liberty here, there does not seem to be any issue that it is likely that, upon return to Sri Lanka, my client will be detained or subject to captivity at the hands of the CID and the State Intelligence Service.  So, in my submission, the issue of threat is made out here and the only issue is the subject matter of that threat.

If I could now turn to the issues where it appears that there are some areas of dispute between the parties about the construction issue?  The first which appeared from a Minister’s oral submissions rather early on was a characterisation of the appellant’s cases, one whereby detention will always equal persecution and that is whether there is – I think my friend expressed it in this way – whether there is a well‑founded fear of detention.

That is not the way that the appellant put its case.  The appellant has been at great lengths to make it plain that it accepts that there is a disaggregated approach to the meaning of persecution revealed in section 91R of the Act.  The proposition put by the appellant is not that detention will always equal persecution.  The proposition put by the appellant is that a detention – or to use a better term “captivity”, will always amount to serious harm.  Whether or not that amounts to persecution is a different question which involves different considerations which simply were not addressed by the reviewer here.

The next issue, which is an issue which I think I have briefly touched on, is that, as I said, the Minister appears to suggest that a proper construction of 91R is subject to a construction of the Refugee Convention under international law and relies on examples of the approach to persecution in other jurisdictions. 

As I said, I adopt the submissions of my learned friend for WZAPN that the references to persecution and the meaning of “persecution” in other jurisdictions is not helpful to ascertaining the statutory meaning of “serious harm” in section 91R.  It is plain that different jurisdictions have taken different approaches to the meaning of “persecution”. 

The example given by my learned friend for the Minister concerning the declaration by the European Union by the Parliament and the Council as to the minimum circumstances of persecution in my submission just serves to underline that different jurisdictions have taken different approaches.  The Australian jurisdiction has taken the approach which one finds in section 91R and that is what is relevant to this Court, in my submission.  The position in other jurisdictions cannot overcome that. 

In terms of the American cases, my learned friend referred to two limbs to the American approach to determination of whether or not a person would be given protection in the United States.  One was – the first limb was really about future persecution which is the normal Convention approach.  The second foundation which my friend then went to in terms of the approach of the United States courts relates to a presumption arising upon evidence of past persecution. 

In my submission, that second limb travels beyond the Convention and is an additional and separate basis for the United States Government providing protection to people.  It is not apposite to be able to inform, in my submission, a proper construction of the Refugee Convention which, by its nature, is all concerned with the risk of future persecution.  The fact that the term “persecution” is used, as the Court has noted, in an undefined way in the United States does not, in my submission, assist in the approach to persecution as it is explained in section 91R of the Act.

I have taken your Honours briefly to Haji Ibrahim and there are some other pre‑section 91R cases such as S393 and Re Chan.  In my submission, there is nothing inconsistent with the construction urged by the appellant in this case and those cases for a number of reasons.  First of all, those cases did not adopt a disaggregated approach to the meaning of “persecution” that section 91R does for obvious reasons. 

Secondly, as I said by reference to Justice McHugh’s reasoning in Haji Ibrahim which does not appear to be – there does not appear to be any issue about the correctness of that view, that when one rolls up all of the elements, there is no qualification on imprisonment, of duration of imprisonment as a disqualification to persecution in that analysis. 

The disqualification in Justice McHugh’s analysis is whether or not it is arbitrary, justified or subject to law and, of course, in the appellant’s construction we accept that such a qualification or restriction on persecution obviously exists in section 91R, just not in relation to the issue of serious harm.

FRENCH CJ:   Just going back for a moment to the factual aspect, the detention upon which you rely is that found at 206 to 207, that is, they will not allow your client “to leave the airport until he has passed a police check” and that “checks may be completed in a matter of hours”.  You do not have the risk factors that can extend them into months.  I think that was a finding.

MR PRINCE:   That is right, and your Honours will have seen in the written outline of submissions extensive reference to the respondent’s concessions, properly made, in my submission, in its summary of argument and, indeed, concessions which are quite properly maintained here in the written outline of submissions at paragraphs 16 and 18 that there is reasoning in the Tribunal’s reasons by which it is accepted that there is likely to be a detention upon return but, because that detention is for a relatively short duration, namely, a matter of hours, it is therefore not in the category of serious harm within the meaning of section 91R(2)(a).

FRENCH CJ:   What is the content of a detention?  Is it not being allowed to leave the airport?

MR PRINCE:   That is probably right, your Honour.  He is at the will of the people who are holding him, much like a policeman on the street who tells a person that they cannot leave the spot where they are.  They have no option.  So whether or not ‑ ‑ ‑

KIEFEL J:   How do you differentiate a person you would call a refugee in this situation from a person at an airport detained for all manner of reasons relating to security and the like?

MR PRINCE:   Generally the point of differentiation would be on whether the law which leads to them being detained is a law of general application necessary and adapted to a legitimate purpose.

KIEFEL J:   I see.  So it is a justification question?

MR PRINCE:   That is right.  Indeed, your Honours will see in one of the references that I have put in the written outline to the instances of the types of detention occurring in Sri Lanka, for example, that the reviewer accepted that there was a power in Sri Lanka vested in the State Intelligence Security Service and the CID to detain people without charge for up to 18 months.

So, whether or not that is a law of general application necessary and adapted to some legitimate domestic purpose is really something that should be addressed by the Tribunal or by the reviewer, properly instructed on the law relating to serious harm, and either it is or it is not and that is a matter for another debate, in my submission.  So there is no absurdity in the proposition and I am not inviting your Honours to suggest that every time a person is put in a room for a brief period of time by a policemen that ‑ ‑ ‑

FRENCH CJ:   There was no finding of a real chance of any further detention beyond that referred to at 206 and 207, was there?

MR PRINCE:   That is right.  There is an issue about ‑ ‑ ‑

FRENCH CJ:   Because of matters personal to the applicant.  First of all, he has main family residents nearby.  He has a national ID card and so forth and his residency is confirmed by some document.  He has not been involved in any activities against the government or in favour of the Tamil liberation movement while in Australia.  That is at 209.

MR PRINCE:   Yes that appears – yes, that is at 209.  It appears that it is accepted by – the Minister does not suggest and, in my submission, correctly that that is an independent or proper basis upon which the claim could be rejected, that is, regardless of whether or not this is serious harm, even assuming for the moment that it is serious harm, notwithstanding that there are other findings upon which the Minister can rely to establish that there should be any relief.

FRENCH CJ:   The point I am, I suppose, emphasising is that the risk which gives content to the serious harm in this case is confined to this apprehended temporary detention at the airport. 

MR PRINCE:   There is another – the reason I hesitate, your Honour, is there is a residual issue which is referred to, I think, I believe, in the written outline of submissions concerning a finding that when he returns to the northern provinces of Sri Lanka - if your Honour goes to paragraph 218 at page 51 of the book, the reviewer confirms a finding that:

on return to Sri Lanka, the claimant is likely to be questioned by various divisions of the government’s security forces to ascertain his reasons for departing Sri Lanka, what he has been doing during his absence, whether he is involved in people smuggling, whether he has had any involvement in or has sympathies with the LTTE or more broadly the Tamil separatist movement . . . it is possible that the authorities would find out that the claimant has sought asylum in Australia.

It appears that – and there is an acceptance at 220 on page 51 that:

the claimant may be monitored for a period of time following his return –

and that that monitoring would be discriminatory. 

FRENCH CJ:   That is not what this appeal is about.  When I look at the particulars of the grounds in the notice of appeal - the error in the finding “that the IMR has applied the wrong test pursuant to section 91R(2)(a)” be particularised by reference to its application to:

findings that the Applicant would be remanded and questioned by the authorities at the airport) and he will be questioned in relation to UNHCR work but he would not face increased risk of harm.

MR PRINCE:   Yes, I think that is right, your Honour.

BELL J:   Your argument accepts that a person detained by a police officer on the street - for example, an innocent party in a traffic accident who is asked to remain for a short period while the breath test device is brought over so that they can undergo the mandatory breath test, that person is in captivity on this account.

MR PRINCE:   Not necessarily, your Honour.

BELL J:   Assume the officer has made clear - the person said “Look, I really need to get to a meeting” and the officer said “I am sorry, but you are going to have to wait until my colleague arrives in a couple of minutes with an ALCO test”.

MR PRINCE:   You are not free to go.

BELL J:   Yes, so you are in captivity.

MR PRINCE:   Yes.

BELL J:   So, when one looks at 91R(2)(a), that period of restriction of freedom of movement, detention, captivity, however you want to characterise it, answers the description of a threat to liberty in the context of a statutory concept of serious harm.

MR PRINCE:   Yes, but that case would obviously rise or fall on the law which enabled – and of course, that is why Parliament is concerned to ensure that such powers of police are properly regulated by laws passed through it, and without issues of delineation of the period in which a policeman can prevent a person from ‑ ‑ ‑

BELL J:   I think the matter I am raising with you, Mr Prince, is as a matter of ordinary English would you say that is a threat to liberty?

MR PRINCE:   That is right; that is a threat to liberty.

BELL J:   Yes, I understand.

MR PRINCE:   The Act makes it plain that that is an instance of serious harm.  In my submission, once it is accepted, as it properly is here, that the detention does constitute a threat to liberty, but only for a short time, necessarily it is an instance of serious harm and in the absence of one of the other factors of persecution not being met, it would amount to persecution.  Unless there is anything further I can assist your Honours with, those are my submissions.

FRENCH CJ:   Thank you very much, Mr Prince.  Mr Donaghue.

MR DONAGHUE:   Only one short point in reply, your Honours, really taking up some of the questions that your Honour Justice Bell has raised with my friend.  If I ask your Honours to assume a law of general application in Sri Lanka that requires everybody who arrives in Sri Lanka to undergo some sort of questioning or checks at the airport when they arrive, were there to be facts that Tamils, when they return to Sri Lanka, are subjected to those checks in a discriminatory way – for example, they are asked extra questions, or they are put to the back of the line until all Sinhalese people are questioned first under those laws – that law of general application, entirely justifiable on its face, would be being implemented in a way that discriminated against people on a Convention ground and that might result being put to the back of the line, in detention for an extra hour or two while you wait while everybody else goes through.

On the case put against us in both appeals, your Honours are being asked to assume, do not worry about the very low bar we are setting for serious harm, because other parts of the analysis will stop the person being found to be a refugee.

But in the example I have just put to your Honours, that is not so; because somebody is being discriminated against on a Convention ground, the law of general application will not protect against a finding of refugee status, and the only reason that that person is not a refugee is because being detained for an hour or two at the airport, even following a discriminatory exercise, is not serious harm.

So, it is no answer to say that other parts of the regime will do the work.  Serious harm should be given its proper meaning as a freestanding element.  If a person fails for other reasons, because there is a law of general application, so be it, they fail for multiple reasons, but it is no reason to distort the analysis of the serious harm of the limb that in some cases, but not all cases, other limbs might cut in.  Now, if that is right, your Honours, then ‑ ‑ ‑

FRENCH CJ:   In other words, profiling does not create a persecution problem.

MR DONAGHUE:   It does not, unless it results in serious harm.  Now, if my friends were to be right and the consequence of being detained at the airport, for example, is that there is a threat to liberty, then in that situation the person would meet the serious harm requirement because 91R(2) would say so.  It would be an instance of serious harm, and the consequence of that would be, working back through 91R, that the criteria in 91R(1)(b), would be satisfied.  The person would meet the serious harm requirement in the section.

But all that would mean is that it could not be said that Article 1A of the Convention does not apply for that particular reason.  That is, if your Honours were to return to the section of the Act, you will see that the three subparagraphs are all introduced with the words “Article 1A(2) . . . does not apply . . . unless” (a), (b) and (c).  So, even if 91R(2)(a) is satisfied, all that means is that there is no disqualification under 91R but it goes no further than that. 

To get a protection visa, you still need to be someone who is owed protection obligations for the purposes of 36, so the construction that your Honours are being asked to adopt is one that would give, as your Honour Justice Bell put to my friend, this wider operation to 91R which then goes nowhere within the wider statutory scheme.  As a matter of construction, why would you construe the provision in that way?  It does not integrate with the way that section 36 works.  So, in our submission, the anomalous result that arises from the submission points strongly against in the statutory scheme, the construction that serves…..  If the Court pleases.

FRENCH CJ:   Did you have anything in reply?

MR NIALL:   No, your Honours.

FRENCH CJ:   Yes, the Court will reserve its decision.  The Court adjourns until 9.30 am on Friday in Canberra and 9.30 am on Friday in Sydney.

AT 2.58 PM THE MATTER WAS ADJOURNED