SBBA v MIMIA

[2004] HCATrans 476

[2004] HCATrans 476

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A248 of 2003

B e t w e e n -

SBBA

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 2004, AT 10.37 AM

Copyright in the High Court of Australia

MR P.C. CHARMAN:   If it pleases the Court, I appear for the applicant.  (instructed by Refugee Advocacy Service of South Australia)

MR M.J. RODER:   If the Court pleases, I appear for the respondent.  (instructed by Sparke Helmore)

GUMMOW J:   You need an extension of time, do you not?

MR CHARMAN:   Yes, I do, your Honour.  I do not think my learned friend has any difficulty with that.

GUMMOW J:   I will ask him.  Is that opposed, Mr Roder?

MR RODER:   No, it is not, your Honour.

GUMMOW J:   Very well, you have that extension. 

MR CHARMAN:    Thank you, your Honour. 

GUMMOW J:   Yes, Mr Charman. 

MR CHARMAN:   Your Honour, the point that we say is the special leave point in this is the extent to which section 91R, in particular 91R(1)(b) and 91R(2), has narrowed the meaning of “serious harm” from what flowed from this honourable Court in the cases of Chan, Applicant A and Ibrahim.  Your Honour, if I could perhaps take you to the manner in which the Full Court dealt with it, firstly, and that is in the application book at page 78.

GUMMOW J:   Yes, we have that.

MR CHARMAN:   Very briefly, at line 30, it simply states that:

The Tribunal correctly directed itself in its analysis of the concept of persecution and the effect of s 91R.

But more particularly, your Honours, if I can take you over the page to page 79 at line 20, with the greatest respect to the Full Court, we say there that the Full Court repeated the error made by the Tribunal in the fact that it appeared to limit the notion of “serious harm” to three particular aspects, being:

substantial physical detriment, a threat to a person’s capacity to subsist or a threat to the person’s life or liberty.

We say, in a nutshell, your Honours, what that ignores is the beginning of section 91R and in particular section 91R(2), which states:

Without limiting what is serious harm – 

and then goes on to give those six instances in 91R(2).  We say that in relation to that there simply has not been enough weight given to the words at the beginning of 91R(2), “Without limiting”.

GUMMOW J:   I think it is said against you that granting that, nevertheless the findings of fact are such that measuring them against what you say is the legal standard, there would be no error.  In other words, I think it is being said this is not an appropriate occasion to get into 91R because, even on your interpretation of 91R, it would not lead to any favourable review for your client of this decision.

MR CHARMAN:   Your Honour, perhaps if I could take you to those parts of the RRT decision that we say give rise to the fact that if a proper test had been applied, then, indeed, there is “serious harm” under 91R(2).  Very briefly, your Honour, if I could take you to the application book page 24, without being too pedantic, in relation to line 15 there is a reference to 91R(2) by the Tribunal:

Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following –

We say it does not mention the beginning of that 91R(2), ie, “Without limiting”.

GUMMOW J:   I know.  That is not what I am asking you.  I am assuming that they got 91R wrong. 

MR CHARMAN:   Yes, your Honour. 

GUMMOW J:   What I am asking you to consider is, given their findings of fact, if they had got 91R right, I think it is suggested to you that nevertheless they would properly have reached a decision adverse to your client, and that therefore it is not an appropriate occasion for us to get involved because it goes nowhere, apart from enriching the case law by construing 91R.

MR CHARMAN:   Yes, your Honour.  Perhaps – I was going to take you to the findings which are at page 43 of the application book.  The first one at line 25:

I accept that the Sabian or Mandaean community in Iran experiences some discrimination in employment and education and in the way the legal system operates.

We say, your Honour, that finding takes it into what flowed from Chan, Applicant A and Ibrahim, and it takes it outside of the limited view of what flows from 91R(2).  Over the page at 44, line 10, there is a reference to incapable of attending university for the children – and I must say, as I go through these, your Honours, this is not just a question of isolation of each particular part of the claim.  It is the cumulative effect of all of these claims which should be taken into account, in our respectful submission.  At page 44, line 15, your Honours, there is a reference to:

subject to petty discrimination, for example with regard to touching water taps.

If I can take your Honours back to page 34, line 10, which explains the basis of that discrimination, which we say clearly is persecution:

The Applicant and his wife said that Sabians were not allowed to touch the water taps because they were considered ‘unclean’ and that they had to give their children bottled water to take to school.

It is not the fact that they cannot touch water taps, it is the fact that it flows from a finding that Sabians are “unclean” and they are not allowed to touch water or food in public.

KIRBY J:   There is a whole list of those things, at pages 36 to 37, of what is alleged.

MR CHARMAN:    Yes.  I will come back to some of the actual instances, but I have referred your Honours in the outline to a case of SBAS where Justice Cooper, a single judge in the Federal Court, indicated it was not only the things which Sabian Mandaeans suffer which is the difficulty, it is if they actually try to protest or do or say something in relation to the discrimination they suffer, one, they would not get protection from the state in relation to them attempting to enforce their rights, and, secondly, they are likely to suffer harm as a result of doing so. 

We say in relation to page 44, line 15, that it cannot be construed as merely “petty discrimination” by narrowing down the claim to say it is merely regarding not touching water taps, when the actual claim is they are found to be “unclean” and “dirty” people who are not entitled to touch food or drink that followers of the Islamic faith would or may come in contact with.  That is, in essence, the claim in relation to that, rather than simply not being able to touch a water tap.

Your Honours, if I can take you to the next one and that is at page 45 at line 15, the Tribunal accepted:

that one of the Sabian Mandaean temples or mandees in Ahwaz has been confiscated – 

and without taking you to it, at page 42, line 35, in fact they accepted it had been confiscated by:

a fundamentalist Islamic militia –

When one couples that, your Honours, with the fact that at page 45, line 20, there is a finding that:

Sabian Mandaeans appear to be allowed to perform their ceremonies largely unhindered – 

and the Tribunal was quoting from a DFAT report in relation to that.  With respect, the rest of the quote, which can be seen at page 40, line 20, went on to say that:

largely unhindered, as long as they observe Muslim sensitivities.  However, Sobian dress and religious ceremonies make them conspicuous amongst the largely Muslim population in Iran, and they may attract unwanted attention as a result of this.

That passage goes on to refer to the lack of employment opportunities in civil service employment, et cetera, but also in that passage it refers to the fact that they are not allowed:

to publish their own newspaper and that a chapel they built for performing their ceremonies privately was closed down.

So where the Tribunal finds that they appear to be allowed to perform ceremonies “largely unhindered”, that is only one aspect of the report which the Tribunal relied upon, in my submission.

GUMMOW J:   I think the crux of the Full Court decision is at page – is it 66?

HEYDON J:   Or is it 79?  The Full Court starts at 76 and the last paragraph on 79 deals with ‑ ‑ ‑

GUMMOW J:   Yes, paragraph 13.

MR CHARMAN:   At page 79, your Honours?

GUMMOW J:   Yes, paragraph 13 of the reasons, “In our view the Tribunal’s findings were reasonably open to it”.

MR CHARMAN:   In answer to that, your Honours, we say that that is only on the basis of the narrow view of “serious harm” that follows in that paragraph that the Full Court expressed, and we say it was reasonably open to it only on the basis that they were correct in construing “serious harm” in a more narrow fashion than what we say it should be construed as, and that there is no ‑ ‑ ‑

GUMMOW J:   You rely on that in a way, do you not?  Do you not say that the error appears in paragraph 13?

MR CHARMAN:   Your Honour, yes, that paragraph 13 there is, in essence, the error that we say was mirrored by the Full Court of what the Tribunal erred in itself.

Your Honours, if I could take you to one last reference in terms of the findings of the Tribunal.  At page 48, line 15, again a DFAT report:

advised that the police will generally protect members of the Sabian Mandaean community and that the police do not discriminate against them – 

Again, your Honour, we submit that that must be taken in the context of the actual report that is found at page 42, line 25, and the rest of that sentence.  Essentially, what the Tribunal has done, with the greatest respect, is quote the first part of a sentence.  It reads:

The police will generally protect Sobbis and generally do not discriminate against them, but Sobbis often have problems in the courts.  If there is a legal dispute involving Sobbis and Moslems, the courts will often side with the Moslem party, especially if the judge is religious.

Of course, the example of that is in relation to the mandee that has been taken away from them, where it was taken by fundamentalist Islamic militia, and whilst there is some suggestion that there is an attempt to have that returned to them in the courts, they do not have great prospects of success.

Your Honour, there is nothing more fundamental than the fact that if an individual, as the applicant, suffers from certain courses of action by individuals which are a detriment to their day‑to‑day wellbeing, it is not only that aspect which we say the cumulative effect leads to persecution and not merely discrimination, it is the fact that if they try to do anything about it, they will then suffer from persecution.  There is the passage to which I have just referred your Honours as an indication of the difficulties the Sabians have in maintaining their rights in front of the courts.

It is not sufficient to simply say that the local police may not actively discriminate against Sabian Mandaeans, when it is abundantly clear, with respect, that if a Sabian Mandaean, on the evidence before the Tribunal, goes to court, the Sabian Mandaean has little prospect of success in the courts, which renders any lack of discrimination by a local police officer immaterial in the circumstances.

We say, your Honours, at the end of the day, the issue in relation to this is, as I think Justice Gummow rightly pointed out, at page 79, that the Full Court repeated that error in paragraph 13 of its reasons by narrowing the concept of “serious harm” down to the list of items listed in 91R(2) without taking proper account of the beginning of that clause which specifically states: 

Without limiting what is “serious harm” for the purposes of paragraph (1)(b) –

Now, that issue, your Honours, has been dealt with to some extent in the Federal Court, and I have referred your Honours to some cases at paragraph 18 of the applicant’s summary of argument.  If I can perhaps briefly take you to what I have put there.  In the matter of WAHV Justice Nicholson referred to some of the disparity in reasoning between the cases of SCAT, which was a majority decision that found that Sabians suffer from psychological harm, which was based on a psychological report, and that that psychological harm amounted to “serious harm”. 

That passage also refers to SBBG, which was a matter which went to the Full Court, was remitted to a single judge and then returned to the Full Court.  After judgment was reserved in that matter, the family were granted permanent residency in Australia and, accordingly, the appeal was dismissed.  In particular, in Justice Nicholson’s judgment in WAHV at paragraph 34, there is a passage quoted there:

“Furthermore, all the dicta relied upon in relation to the nature of persecution must be understood in the context of the enactment of s 91R and cannot be read as now alone setting the applicable standard”.

We say, with respect, your Honours, that and the passage referred to in the following paragraph, being a passage from SBBG, outlines the fact that there are some inconsistencies in the Federal Court in the manner in which 91R deals with “serious harm”.

GUMMOW J:   If one puts aside section 91R(2), what do you say here was the “serious harm” for 91R(1)(b)?

MR CHARMAN:   We say that “serious harm” ‑ ‑ ‑

GUMMOW J:   That is a phrase that does not appear in the Convention, of course, but what do you say is the intensification that is involved in this notion of “serious harm”?

MR CHARMAN:   We say, your Honour, that “serious harm” is more than those three aspects which the Full Court referred to.  It is the denial of fundamental rights, and we say that the denial of proper access to the legal structure is a denial of a fundamental right or freedom; that the cumulative effect of denial of education at university level, of not being able to touch food and water in public, and the implications of what would happen to an individual if they did, and the lack of protection which would flow if they said, for example, they were going to go to school and were going to drink out of the taps which the Muslim boys and girls drink out of, if no action was going to be taken against the Muslim boys and girls if they attacked, for example, the individual, then that is a lack of protection which gives rise to a significant reduction of fundamental rights or freedoms.

To a large extent, we rely upon, as indicated, what flowed from Justice McHugh in Chan, in the sense of denial of access to employment, the professions, to education, to freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship.  We say that in this case, on the evidence ‑ ‑ ‑

GUMMOW J:   I suppose one question is whether that description by Justice McHugh in Chan is now put to one side because it does not amount to “serious harm”.  That is the question, I guess.

MR CHARMAN:    Yes, it is.  That is the fundamental issue, your Honour, that we say is of such significance that it is worthy of special leave, and we say in relation to the matters which I have raised with you from the Tribunal findings, there is sufficient evidence there of matters which may well have been “serious harm” or persecution under what flowed from Chan, Applicant A and Ibrahim as to be worthy of argument in relation to whether they still continue to be persecution under 91R(2).

GUMMOW J:   Yes.  Justice Hayne reminds me, too, there has to be some systematic conduct as well.

KIRBY J:   That qualification would be met in this case, would it not?

MR CHARMAN:    Yes, your Honour, I would have thought that as apparent from the Tribunal’s findings, it accepted there was discrimination in education ‑ ‑ ‑

GUMMOW J:   It may be capricious rather than systematic.

MR CHARMAN:   I am sorry, your Honour?

GUMMOW J:   It is not said that all judges are adverse.  It is only some of them.  So where is the system?

KIRBY J:   The system is a subcategory of religious decision‑makers.

MR CHARMAN:   I am sorry, your Honour Justice Kirby, I did not quite  catch that. 

KIRBY J:   I say the system, for the systematic, is those judges who are religious. 

MR CHARMAN:   Yes, your Honour, and the lack of protection they afford a person who tries to maintain his rights in relation to all the other discrimination/persecution which Sabians suffer on a day to day basis.

KIRBY J:   It is an arbitrary system, but it is a system of some kind. 

MR CHARMAN:   Yes, your Honour.  We say, with respect, it is clear from even the Tribunal’s findings – I think I referred your Honours to page 43, line 25 – that there is:

discrimination in employment and education and in the way the legal system operates.

We say that is sufficient for every other aspect of 91R, if not 91R(2).

KIRBY J:   The problem is that the Federal Parliament has enacted this law and we cannot, as the High Court of Australia, sit in every case where somebody, as a decision‑maker, has applied the law.  I mean, they are really essentially factual decisions applying a law made by the Federal Parliament deliberately to cut down on what would otherwise have been entitlements understood from the Convention.  So, in one sentence, what is the reason why you say that this matter, as it were, presents a test case for the consideration of the section which is going to have a large and general application?

MR CHARMAN:   In one sentence, your Honour, the fact that at the beginning of 91R(2) there are the words “Without limiting”, and if the Parliament had intended to limit it in the manner in which the Full Court said it had, those words would not be present.

GUMMOW J:   Very well.  We will hear from Mr Roder now.

MR RODER:   If the Court pleases, my submission is that it is evident from the decision of the Tribunal that it did not limit its consideration to the matters in section 91R(2) in the way that my learned friend submits that it did, and that the Tribunal’s own reasons show that it made no such error.  The first indication of that is at application book page 24.14, where the Tribunal expressly states that:

‘serious harm’ includes a reference to any of the following –

Now, that appears, on its face, in accordance with the ordinary meaning of “includes”, to show that the Tribunal understood that the matters in section 91R(2) were not exhaustive.  Then that appears to be confirmed from the way the Tribunal then goes on to consider the question, once it discusses the evidence and comes to its findings and conclusions.  At page 43.30, and then over the page to page 44, the Tribunal considers the issue of the discrimination that Sabian Mandaeans face in employment.  It notes that the applicant has had a successful business as a goldsmith and then it concludes at point 36:

I am unable to accept on the evidence before me that the Applicant and his wife will be denied the capacity to earn a livelihood – 

Now, that appears to be a reference back to section 91R(2), which talks about the inability to earn a subsistence wage, but the Tribunal does not stop there.  It goes on:

or that any discrimination which the Applicant and his wife may face in relation to the employment available to them will otherwise amount to ‘serious harm’ for the purposes of subsection 91R(1) of the Act – 

In my submission, that is a clear indication that the Tribunal had both the illustrative aspects of section 91R(2) and the general situation in 91R(1) in mind. 

Then, your Honour, the next important passage about that is the next sentence, page 44.10.  The Tribunal goes on to consider the question of education.  Now, there is no specific reference to education in 91R(2), but nonetheless the Tribunal considers that and, again, it makes its findings at point 16 that denial of the opportunity to go to university does not involve “serious harm”, refers back again to section 91R(1), that is, the main section ‑ ‑ ‑

GUMMOW J:   You may be right about that, Mr Roder, but the question then is, what is the content of the phrase “serious harm” in 91R(1)(b) divorced for the moment from (2)?

MR RODER:   Yes, your Honour.

GUMMOW J:   Now, Justice McHugh’s judgment in Chan, and other judgments, would suggest that some of these matters that are being said here not to amount to “serious harm” would have supplied a Convention ground.  Now, is that not a question of construction which is of some importance?

KIRBY J:   Just imagine if you could not go to university because of your religion. 

MR RODER:   I understand this is a difficult case, your Honour, but in response to that point, your Honour, the ‑ ‑ ‑

KIRBY J:   We above all can understand how important that is.

MR RODER:   Yes, your Honour.  Your Honour, in response to the question ‑ ‑ ‑

GUMMOW J:   Is that not a point of construction of the Act that may be important?

MR RODER:   If I could answer your Honour’s last question and then come to this question?

GUMMOW J:   Yes.

MR RODER:   In terms of what Justice McHugh said in Chan, what his Honour said was that it may constitute persecution, and then his Honour Justice McHugh in Ibrahim revisited, as it were, those observations in Chan.  I have set them out at paragraph 11 of my submissions in response.  What his Honour has made clear is that there are some aspects of harm which are clearly serious enough that, as a matter of law, they will amount to persecution.  His Honour gives examples of:

Torture, beatings or unjustifiable imprisonment – 

Then his Honour refers to other matters:

the infliction of many forms of economic harm and the interference with many civil rights may not reach to the standard of persecution – 

His Honour then goes on to express himself – although it is not set out in the passage in italics – in terms of whether or not the harm was “intolerable”.  There are other expressions ‑ ‑ ‑

KIRBY J:   You see, this is a way regimes suppress the leadership, intellectual leadership, that challenges their discrimination.  They do so by forbidding those who will challenge it to become the intellectual leaders of the country.  They can only really do that if they get good education, and that normally means going to a university.  So that is the problem with the construction which has been adopted here; it is, in a sense, self‑fulfilling because it cuts off the high road of leadership to people who are of this minority.

MR RODER:   Yes, your Honour.  The only response I can make to that is that it is a question within jurisdiction for the Tribunal to determine, as a matter of fact and degree, whether an inference of civil rights like this ‑ ‑ ‑

GUMMOW J:   No, no.  They have to construe the statute first, and that is a question of law.

MR RODER:   Indeed, your Honour, but there is no indication, unless ‑ ‑ ‑

GUMMOW J:   Having done that, they then find the facts, then they apply the one to the other.  Pretty basic, really.

MR RODER:   At the end of the day, the test for the Tribunal is whether it is “serious harm”, and my submission is that it is a question of fact and degree for the Tribunal whether the facts as found amount to “serious harm”.

GUMMOW J:   There is so much baggage in notions of harm and persecution involved in this legislation, it is pretty hard to say you can just work out what it means off the cuff, as an ordinary person in the street.

MR RODER:   In a sense, it is never going to be possible to run a test case, as it were, and elucidate definite principles about what is or what is not either persecution under the Convention or section 91R under the Act now.  It will always be a question in the particular case of fact and judgment.

GUMMOW J:   Yes, that is true.

MR RODER:   We see that from the cases from this Court on the question of persecution, that, at the end of the day, there are a number of expressions of principle.  The term “serious harm” has fallen from judgments in this Court, from Chief Justice Mason in Chan, from Chief Justice Gleeson in Khawar, Justice McHugh in Ibrahim talks about intolerable harm.  At the end of the day, one still is left with these broad guidelines, and then a question of fact, in my submission, for the Tribunal whether to apply it or not.

I think that is as fully as I can respond to the question that your Honour put to me.  Your Honour, I would also submit that there is no error apparent in the Full Court’s reasoning at paragraph 13 of its judgment.

GUMMOW J:   What page is that?

HEYDON J:   Page 79.

MR RODER:   Page 79, thank you.  It is a passage that my learned friend, as I understand, relies on.  The Full Court specifically states that:

s 91R does not provide an exhaustive list of instances of ‘serious harm’ ‑ ‑ ‑

GUMMOW J:   Yes, it is the next phrase, I think:

it does give some guidance as to the extent of the persecutory treatment that is required ‑ ‑ ‑

MR RODER:   As I understand, what the court is saying there is that it has treated section 91R as being, as it were, illustrative.  When one has the juxtaposition of sections such as 91R and 91R(2) it would either be exhaustive, which it is clearly not in this case ‑ ‑ ‑

GUMMOW J:   The question is whether there is a genus wider than the species that is being identified in subsection (2). 

MR RODER:   I do not understand that the Full Court is saying that the genus could not be wider than the species.  I just understand the Full Court to be saying that it gives an illustration and some guidance as to the level of harm that might be required.  It must be remembered, this is in the context that the argument that is now being advanced about things such as university and the like and not touching taps was not the argument that was advanced before the Full Court.

The argument before the Full Court was advanced in a very limited context, that is, the argument was simply this that the inability to receive “blood money” amounted to persecution in law, and that was really the only point the Full Court was responding to.  So one other difficulty with this case is that this Court does not have the benefit of a comprehensive detailed analysis of the section or all the facts of the case by the Full Court, because of the way in which it was put.  We would say that is another reason why it is not a suitable vehicle. 

KIRBY J:   But the argument is, is it not, an argument of law based on the facts that are not really in contest?

MR RODER:   I would seek to put it differently.  I would say that although the facts are not in contest, the question is a question of fact and degree.  Even though it may be on uncontroverted facts, it is a question of judgment on the part of the Tribunal as to which side of the line it falls on, except in cases where ‑ ‑ ‑

KIRBY J:   I take the force of that, but there is Justice Gummow’s point that there is a lot of baggage attached to the language in the Convention of “serious harm”.  There would be a lot of material available in the text, a lot of decisions in foreign countries, as we have discovered, and the statute has not excluded the use of that material to understand what the Convention means to which Australia is a party.  It has simply narrowed certain categories.

MR RODER:   On one view of it, all it has done is pick up the words which are used, for instance, by Chief Justice Gleeson in Khawar and Chief Justice Mason in Chan.  I suppose I come back to the point that, at the end of the day, it is not possible to strictly elucidate or elicit what is or is not persecution or “serious harm”.  One is going to be left with broad concepts and applications to particular cases.

KIRBY J:   Your contention is that seriously educated people like us might think it would be a terrible “serious harm” not to be able to go to university and to be excluded simply because of your faith, but it was open to the Tribunal, you say, to reach a contrary view and that was just a matter of applying the statute.  But it is not just an ordinary expression.  It has very pretty serious consequences, which are likely to be of general application, for this particular minority.

MR RODER:   I am not sure that I can respond to the point any more fully than I have. 

KIRBY J:   No. 

MR RODER:   The only other matter I did want to deal with, unless the Court had further questions, was – firstly, the country information that was

referred to at pages 36 and 37 was largely not accepted by the Tribunal.  I only raise that because it was referred to during argument.  That was information that came under a letter from the Sabian Mandaean Association.  At page 48, the Tribunal made an express finding at points 32 to 36, referring to the information provided by the Department.

KIRBY J:   What did the Department information say about access to university education? 

MR RODER:   The Department information accepted that it would be very difficult for a Sabian or, indeed, any religious minority in Iran to attend university.  There are obstacles put in the way, including, I think, having to sit an examination in the Muslim faith.  But the point I make, your Honour, is – your answer to me may be that this is the case, but if, in fact, the inability of religious minorities to go to university as a matter of law must amount to serious harm or persecution, it has the consequence that each and every person in a religious minority in Iran is in fact persecuted or subject to serious harm.  My argument to that is to the contrary, that it is a question of judgment and degree.

The only other point I wanted to make was that for the reasons that I set out in my supplementary submissions at paragraphs 13 to 14, I do not accept that there has been any divergence of view at all in the Federal Court about the proper approach to take to these matters.  If the Court pleases.

GUMMOW J:   Yes, thank you.  Yes, Mr Charman.

MR CHARMAN:    Your Honours, very briefly, and just perhaps to make it abundantly clear ‑ ‑ ‑

GUMMOW J:   It is so, is it not, that in some respects the position put by your client was not accepted?  I am looking at the top of page 47, “I likewise do not accept” that there would be intrusion. 

MR CHARMAN:    Your Honour, I have not referred your Honours to those particular individual claims which were not accepted.  Most of those references I have given to your Honours are those references relying upon DFAT information which formed the basis of the Tribunal decision, which found that whilst the police did not discriminate, the courts did; that they could not attend university; there were limitations on employment; that the mandee had been taken away from them from a fundamentalist Islamic group.  All of those references, your Honour, were based upon findings of the Tribunal on DFAT information. 

I have not referred your Honours to those aspects of the applicant’s claims which were not accepted – or, at least, I have tried not to refer you to

those parts of the applicant’s claims which were not accepted by the Tribunal, because we say, with respect, there is enough in relation to those findings of the Tribunal in fact to show that there has been an error of law in relation to its interpretation of how section 91R(1)(b) fits with section 91R(2).  That, really, with respect, is the issue that we put.  What exactly does “serious harm” under section 91R(b) ‑ ‑ ‑

GUMMOW J:   Well, I am not sure that is right.  It seems to me that your draft notice of appeal would be inadequate at the moment.  It is 91R(1)(b) and 91R(2).  The question really is, what can amount to “serious harm” for 91R(1)(b) which does not fall within any of 91R(2), is it not?

MR CHARMAN:    Yes, your Honour.

GUMMOW J:   There may be other ways of putting it.

MR CHARMAN:    If the Court pleases, I have nothing to add.

GUMMOW J:   We will take a short adjournment.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

GUMMOW J:   The Court considers that serious questions do arise as to the construction of section 91R(1)(b) in its relation to section 91R(2) of the Migration Act 1958. However, the contentions the applicant wishes the Full Court of this Court to consider were not advanced and examined in the Federal Court. It will be more satisfactory for this Court to consider the questions of construction, to which I referred, in a case where consideration had been given to them on facts clearly established. Accordingly, the extension of time is granted, but special leave is refused and refused with costs.

Thank you, gentlemen.

AT 11.29 AM THE MATTER WAS CONCLUDED