Se, Ex parte- Re Minister for Immigration & Multicultural Affairs
[1998] HCATrans 389
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M99 of 1998
In the matter of -
An application for a Writ of Prohibition against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
BRENDAN KISSANE, in his capacity as a member of THE REFUGEE REVIEW TRIBUNAL
Second Respondent
Ex parte -
“SE”
Prosecutor/Applicant
HAYNE J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON MONDAY, 9 NOVEMBER 1998, AT 9.35 AM
(Continued from 4/11/98 before Kirby J)
Copyright in the High Court of Australia
MS D.S. MORTIMER: If your Honour pleases, I appear on behalf of the applicant. (instructed by Refugee and Immigration Legal Centre)
MR C. GUNST, QC: If your Honour pleases, I appear on behalf of the first respondent. (instructed by the Australian Government Solicitor)
HIS HONOUR: Yes, Ms Mortimer.
MR HANKS: Before your Honour calls on the prosecutor, may I just seek leave to make a short statement on behalf of my client. I appear for Amnesty International and I have been asked simply to advise the Court that my client will, if this matter is made returnable before the Full Court, be seeking leave to be heard as amicus curiae in order to advance some matters. Those are the only matters I have been asked to draw to the attention of the Court.
HIS HONOUR: Thank you, Mr Hanks.
MR HANKS: May I have your Honour’s leave to withdraw?
HIS HONOUR: Of course. Yes, Ms Mortimer.
MS MORTIMER: Your Honour, there are three subpoenas which were issued out of this Court and were returnable today. I would call on each of those subpoenas. The first is a subpoena to the secretary of the Department of Immigration and Multicultural Affairs.
HIS HONOUR: Does anyone attend in answer to that subpoena?
MR GUNST: There is a departmental officer here, your Honour. The file has just been handed to my instructor. If your Honour wishes it done in a formal way ‑ ‑ ‑
HIS HONOUR: Ms Mortimer, how are we going to deal with this? Do you wish to call it on in the ordinary way? Is there some arrangement that can be made? How are we going to proceed?
MS MORTIMER: Your Honour, I would hope that we could arrange to have the matter stood down at some stage that was convenient to the Court so that we could look at the documents.
HIS HONOUR: Let us first get hold of the documents. What is happening about the subpoena and its answer? Are we calling it on in the formal way, Mr Gunst? Are the documents to be made available? What is to happen?
MR GUNST: The documents are here, your Honour, and they are produced on behalf of the secretary.
HIS HONOUR: And is there any objection to their being inspected by counsel for the applicant?
MR GUNST: No, your Honour.
HIS HONOUR: If the documents are received by my associate they will be made available for inspection by you or those instructing you, Ms Mortimer.
MS MORTIMER: If your Honour pleases. The second subpoena is a subpoena addressed to proper officer of British Airways. I call that subpoena.
HIS HONOUR: I believe someone attends in answer to that.
MS DALEY: May I approach the Bar table.
HIS HONOUR: Yes, please.
MS DALEY: Your Honour, I represent British Airways.
HIS HONOUR: Could you give me your name?
MS DALEY: Melissa Daley.
HIS HONOUR: Yes, Ms Daley.
MS DALEY: Your Honour, I am instructed that a representative of British Airways is currently in transit on the Tullamarine Freeway, having flown from Sydney this morning.
HIS HONOUR: That may mean about 4pm this afternoon, Ms Daley, I think.
MS DALEY: The last word was that he had reached the Bell Street intersection with the Tullamarine Freeway.
HIS HONOUR: That is 3.50.
MS DALEY: Your Honour, if I could seek leave to have the subpoena called on perhaps in another 15 to 20 minutes.
HIS HONOUR: Yes. Ms Mortimer, is there any difficulty about that?
MS MORTIMER: No, of course there is no objection. Thank you, your Honour.
HIS HONOUR: Thank you, Ms Daley.
MS MORTIMER: The third subpoena, your Honour, is addressed to Joanne Nougher of the Department of Immigration and Multicultural Affairs. I call on that subpoena.
HIS HONOUR: Is that a subpoena ad test or a subpoena duces?
MS MORTIMER: No, it is a subpoena to give evidence, your Honour.
HIS HONOUR: Why should I hear oral evidence?
MS MORTIMER: Well, your Honour, it may be that it is not necessary if it is borne in mind these subpoenas were issued before we saw the respondents’ affidavits.
HIS HONOUR: I understand that. Do you press the return of this subpoena ad test?
MS MORTIMER: I press it at the moment, your Honour. I propose to ask for Mr Read to be called for cross‑examination and I propose to ask him if he is able to explain the matters that he has referred to in detail. If he is, then I do not need to press the subpoena against Ms Nougher. But at the moment I do press it, your Honour, because, unless that question is asked ‑ ‑ ‑
HIS HONOUR: In what order are we taking things, Ms Mortimer? You have suggested that you want to cross-examine one of the deponents. Is that to occur before you call on the subpoena or after? What order do you say I should deal with things?
MS MORTIMER: If Ms Nougher is present in Court and would otherwise be remaining in Court, then the subpoena need not be called on until, as a matter of practicality, I have cross-examined Mr Read but, if she is attending and she wishes to be released from her obligation to attend, then it is probably appropriate that it is called on now.
HIS HONOUR: Mr Gunst, do you want to be heard on what process or what steps should be taken in this regard?
MR GUNST: Only to say this, your Honour. The question of steps is really in your Honour’s hands. Ms Nougher is here, the deponents of my two affidavits are here. I am really in my learned friend’s hands as to how she wishes to proceed, save to say that no notice was given for either of the deponents to attend and it is not the usual way in this Court. But it is an important matter and we are in your Honour’s hands in the end.
HIS HONOUR: Well, Ms Mortimer, having heard that, what do you want to do first?
MS MORTIMER: If they are both in Court, your Honour, I am content to have – perhaps I could have Mr Read called for the purpose of asking him the sole question and then he could be excused till a bit later. Once we know the answer to that question, we will know whether I need to press the subpoena in relation to Ms Nougher.
HIS HONOUR: I understand from what you have said, Mr Gunst, you are not objecting to that process, is that right?
MR GUNST: I would not want, with respect, your Honour, this to be turned into a fishing expedition but there has been no indication given of the matters about which it is proposed to cross-examine Mr Read, nor is there any material on oath that controverts anything that he has said in his affidavit.
HIS HONOUR: Perhaps those are matters that may arise once we have heard the question or questions that are asked.
MR GUNST: I am conscious of the speed with which the matter has come on, your Honour. It may well be that in the ordinary way they would have been elucidated.
HIS HONOUR: Do you tender Mr Read for cross‑examination?
MR GUNST: Yes, your Honour, if required.
HIS HONOUR: Perhaps if he is called then.
JOHN LAURENCE READ, sworn:
HIS HONOUR: Mr Gunst.
MR GUNST: Mr Read, your full name is John Laurence Read?---Correct.
And you’re a public servant, an officer in the Department of Immigration and Multicultural Affairs?---Correct.
And you’re the manager of the compliance section?---That’s correct.
Did you swear an affidavit in this proceeding on 6 November 1998?---I did.
Would you look at this document, please.
HIS HONOUR: I think I have the original, Mr Gunst, so we might use the original.
MR GUNST: Thank you, your Honour.
Do you identify that as the original of the affidavit sworn by you on 6 November 1998?---It is.
Were the matters contained in that affidavit, together with the exhibits to that affidavit, true and correct?---That is so.
Thank you, Mr Read.
HIS HONOUR: Perhaps if you would hand the affidavit back, Mr Read. Ms Mortimer.
CROSS-EXAMINED BY MS MORTIMER:
MS MORTIMER: Mr Read, you’ve deposed to a sequence of events in your affidavit, some of which include contact between Qantas and P & I, some of which include contact between your department and P & I. Are they matters that you personally were involved in or which have been reported back to you by people under your supervision?---Reported back to me.
Is the person who’s been directly involved Ms Nougher?---Yes.
And have you been sufficiently informed about the details of the matters that you’ve deposed to to explain the details to the Court, or do you say that that’s something that Ms Nougher is better placed to do?---I believe I have a reasonable understanding of the processes, but I have not been directly involved.
So do you say that there are matters in relation to the dealings of your department with P & I and the dealings between the airways and P & I that you may not personally know of but Ms Nougher may be better placed to give evidence about?---It may be that Joanne Nougher had direct contact and may have a better knowledge of those deliberations.
If your Honour pleases, then I do press the subpoena in relation to Ms Nougher.
HIS HONOUR: Let us deal with the witness first. Do you have any further questions of this witness, Ms Mortimer?
MS MORTIMER: Yes, your Honour, I have a couple. I will deal with those now.
HIS HONOUR: Perhaps if we deal with them and then we will see where we get to from there.
MS MORTIMER: Yes, all right.
Can you look at paragraph 3 of your affidavit, Mr Read.
HIS HONOUR: Do you have a copy, Mr Gunst?
MR GUNST: I have a copy, your Honour, yes.
HIS HONOUR: If now the witness could be shown the copy, it would be more convenient for me, thank you. Paragraph 3, you say, Ms Mortimer?
MS MORTIMER: Yes, your Honour.
Mr Read, are you the officer charged with the duty of arranging this applicant’s removal from Australia?---Yes.
And are you the person who makes the decision about the country to which he is to be removed?
HIS HONOUR: Yes, Mr Gunst.
MR GUNST: Your Honour, there is a legal implication in that which is not correct as a matter of law, that the removal is to a particular country. Removal is removal from Australia, not removal to any particular place. I object to the insinuation or implication in the question. It can fairly safely be rephrased and then it is a question I would not object to.
HIS HONOUR: Ms Mortimer.
MS MORTIMER: I will rephrase it.
This applicant is to be removed to Somalia, is that right?---I believe so, yes, that’s correct.
Who made the decision to remove him to Somalia?---The decision to remove him under section 198(6) is to remove him from Australia.
I understand that and I want to know who made the decision to deliver him or take him to Somalia?---I can’t answer that because it follows a certain process. Somebody who is removed from Australia, a final destination and how that person is routed to get to that destination depends on other countries. Now, at this point he has been – arrangements were made for him to be removed from Australia. An outside agency and the carrier that had the liability to remove him organised the onward movements to final destination. That is something that we’ve had nothing to do with.
Who chose the destination of Somalia?---I can’t answer that.
Why not?---Because we haven’t made such a decision.
Mr Read, the applicant is being taken to Somalia and there’s a great deal of evidence before this Court about how he’s going to be taken there. There’s also evidence before this Court that he does not want to go, so we can safely say it’s not his decision to go to Somalia. Who made the decision to go to Somalia?---I can’t answer that.
Is there someone else that I should ask that question of apart from you?---I can’t suggest anybody else.
There’s no one else in your department who can answer that question?---I don’t believe so.
And there’s no one in the Minister’s office who can answer that question?‑‑‑I don’t believe so.
Is there any rational basis for choosing Somalia?---I don’t understand what you mean by “rational basis”.
I want to know, Mr Read, how the travel arrangements came to be made with an ultimate destination of Somalia. You say you’re unable to tell the Court how that came about?---Perhaps I can reiterate. Under the legislation we have a responsibility, acting on behalf of the Minister, to remove under section 198. The removal is from Australia. The final destination is not a matter that is really our responsibility.
Whose responsibility is it?---Well, it gets down to what the nationality of the person is and what other options there are for him to be basically removed to. At this point in time we are unaware of any alternative rights of residence that he may have, and accordingly the processes – he is removed from Australia and the final place where he would conclude his journey would be where the responsible carrier would arrange for his placement basically. It really gets down to what options there are, and that would have been what British Airways looked at.
So if the carrier whom your Minister directs under section 217 of the Act to transport this person, if that carrier decided to take SE to Iceland, you say you would have no input or no responsibility to consider whether that was a reasonable place to have him taken to?---Removal from Australia is the first responsibility under the legislation. The final destination really is a matter for, in this case, the prosecutor and the company that has the responsibility to remove.
Is the answer to my question “no”?---Could you repeat the question, please.
If a carrier decides to take the applicant to Iceland, is it your evidence to this Court that the Minister has no responsibility in relation to that decision?---I believe that’s the case because the responsibility is to remove from Australia.
I understand that. If a carrier, being a ship, takes the applicant to the edge of the territorial waters and throws him overboard, is it your evidence that the Minister has no responsibility for that conduct?---I ‑ ‑ ‑
HIS HONOUR: Just a moment, Mr Read. Yes, Mr Gunst.
MR GUNST: Your Honour, with respect, that is a very silly and provocative question in the circumstances of this case, and I object to it on that basis. The witness is here to answer sensible questions about a serious issue. In my submission, that was a very provocative and inappropriate question.
HIS HONOUR: Leaving aside the characterisation of it, Ms Mortimer, and the characterisation may be something that might evoke a little reaction, is it going to help me to know what this witness thinks would be the position in a hypothetical case that is unrelated to the circumstances of this case?
MS MORTIMER: Yes, your Honour, because this witness is here to give evidence, as an officer of the first respondent and the person responsible for the removal of this applicant, what the first respondent’s responsibility to this applicant is. In my submission, I am entitled to test the nature of that responsibility. Now, the hypothetical situations may range from the completely, one would hope, absurd to the not so absurd, but I am entitled to test that, your Honour, because that goes to the way in which your Honour ought to draw inferences about the answers given.
HIS HONOUR: I will not stop you, Ms Mortimer. I would say to you, though, at the moment that I very much doubt I will be much assisted by this, but I will not stop you.
MS MORTIMER: I understand, your Honour.
Mr Read, if the applicant had said to you that he wished to be taken on a flight to New Zealand so that he could claim refugee status there, was that a request that your department would have facilitated?---In the circumstances you have just outlined, no. We would not expect – we have a relationship with New Zealand and we would not allow that to happen knowingly.
So it’s not correct then that the applicant has a free choice about where he goes?---If he has alternatives in respect to rights of residence, perhaps Italy, perhaps he might articulate that and we’d take it into consideration.
So the applicant does not have a free choice about where he goes. He cannot choose his destination from whatever country in the world he wants to go to? Is it your evidence that he can only choose – you will only consider his choice of destination if the department can ascertain he has some kind of right of residence there?---That’s correct. We have international obligations to other countries not to create difficulties for them in respect to their entry regime.
What are those international obligations?---The IATA agreement.
That’s the aviation ‑ ‑ ‑?---That’s right.
And what’s the obligation under there that you have to other States?---I’m sorry, look, I can’t speak with any authority or to a degree that you obviously want to ask me.
When you came to exercise your statutory duty to arrange for the removal of this applicant from Australia, did you examine the conditions in Somalia to which he was going to be returned?---No, that had already been done.
By whom?---Well, the RRT process.
Outside whether he faced persecution for a convention reason, did you examine the conditions in Somalia with a view to ascertaining whether he faced a risk of serious harm for whatever reason?---No. What we did was relied on the decision that was taken by the due process, the primary decision in Refugee Review Tribunal and the Minister’s section 417 and section 48 intervention options. Once that process had been exhausted we, in the compliance area, followed the process of removal under 198. Now, we do not assess the merits of a person’s situation. That had been resolved.
Does anybody in your department or in the office of the Minister for Immigration assess whether a person who has been unsuccessful in a refugee application is likely to face a real risk of serious harm in the country to which that person is to be returned in the context that they have been determined not to fear persecution for a convention reason? I’m talking about serious harm for whatever reason. Does anyone make that assessment?---Those matters were clearly assessed by those in the process of referring the matter to the Minister.
Mr Read, in this case the Minister wrote to the applicant and informed the applicant that he had decided not to consider to exercise his discretion under section 417 and he made the same communication to the applicant in relation to section 48B – that is, he did not embark upon an exercise of his discretion. That’s right, isn’t it?---Yes.
So there was no consideration by the Minister of the situation to which this applicant was to be returned, was there?---Look, I can’t answer that. Can I say I don’t know what’s in the mind of the Minister. I know the documentation that was put to him.
I’ve no further questions of Mr Read.
HIS HONOUR: Thank you. Mr Gunst.
RE-EXAMINED BY MR GUNST:
MR GUNST: Mr Read, you were asked some questions about the destination to which a person would ultimately go on their removal from Australia. Is the position that a person is removed from Australia before or after travel documentation is obtained? By “travel documentation”, I mean
a visa or an entry document to the country of removal?---We have to secure the travel documentation first before you can make any arrangements.
And is the travel documentation obtained in respect of a country to which any particular person has a right of entry?---That’s correct.
This man is a citizen of Somalia, as he says?---Correct.
There’s a suggestion in the material that he might have had a right of residence in Italy as well. Would any other country have been considered?‑‑‑No.
Could any other country be considered?---If there was a right of residence there or no visa entry requirement, yes, but it relies on the requirements of other countries. Basically we don’t canvass other countries to place a refugee or a failed asylum claim.
So, for example, New Zealand was suggested to you. There’s no suggestion here that this man has a right of entry into New Zealand, so New Zealand wouldn’t be considered as a potential end point, is that right?---That’s right. He would need a visa.
Nothing further, your Honour.
HIS HONOUR: Thank you, Mr Read, you may go back into the body of the Court.
(THE WITNESS WITHDREW)
HIS HONOUR: Yes, Ms Mortimer.
MS MORTIMER: Your Honour, before I call on Ms Nougher to give evidence, if it is not too inconvenient I would seek a very short adjournment so I can look at the documents that have been produced in relation to the subpoena.
HIS HONOUR: How long do you say you need?
MS MORTIMER: Given your Honour’s reputation for timeliness, I do not want to take up too long – perhaps 20 minutes, your Honour.
HIS HONOUR: I would rather you made a real estimate now than ‑ ‑ ‑
MS MORTIMER: Could I say half past 10, your Honour. That is 25 minutes.
HIS HONOUR: You will no doubt bear in mind in your examination of the documents and your consideration of the evidence that is to be put before me the exact nature of the issues that I have to decide. They are whether order nisi should go; if order nisi should not go, whether that application should be dismissed or referred to a Full Court or what steps should be taken. This is not the final trial of any issue but it is whether any arguable case is made out.
MS MORTIMER: Yes, I understand, your Honour.
HIS HONOUR: I have another matter at half past 10. I wonder whether it may be better to stand this matter over until, say, not before a quarter to 11. It would enable me perhaps to deal with the issue at half past 10. It would give you a chance to examine the documents. Do you have anything to say about my adopting that course?
MS MORTIMER: That would be convenient, your Honour. It would give me an opportunity to see the applicant as well, so I would be very content with that.
MR GUNST: I am content with that, your Honour.
HIS HONOUR: If I say not before a quarter to 11, which will turn on what happens with the other matter that is coming up.
MR GUNST: I assume your Honour has seen the outline of submissions on behalf of the respondents?
HIS HONOUR: Yes.
MR GUNST: Thank you.
AT 10.06 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.07 AM
HIS HONOUR: Ms Mortimer?
MS MORTIMER: If your Honour pleases. I call upon the subpoenas served on British Airways, your Honour.
HIS HONOUR: Yes. Is there a representative of British Airways present?
MS DALEY: Your Honour, I am here…..for British Airways.
HIS HONOUR: Yes. There is no need – or is there a need for the witness to be sworn, Ms Mortimer, or simply to produce the documents?
MS MORTIMER: No, there is not. I understand there is no objection to the production of the documents.
HIS HONOUR: Mr Smith, is that right, you have no objection to producing documents?
MR SMITH: That is correct.
HIS HONOUR: Do you have any objection to the parties examining the documents that you produce?
MR SMITH: …..
HIS HONOUR: Thank you very much for your attendance. If you would be good enough to leave the documents with my associate and if, more importantly, we could have some note of where to return them when they are to be returned, that would be of assistance as well. Thank you very much for your attendance. Yes, Ms Mortimer?
MS MORTIMER: If the Court pleases. Your Honour, I do call upon the subpoena to Ms Nougher. I have three questions I wish to ask her.
HIS HONOUR: Yes. Mr Gunst, do you have anything to say?
MR GUNST: No, your Honour.
HIS HONOUR: Yes, call the witness.
JOANNA NOUGHER, sworn:
MS MORTIMER: Ms Nougher, can you tell the Court your full name and address and the position that you hold in the Department of Immigration and Multicultural Affairs, please?---Full name is Joanna Nougher. I am a public servant within the Compliant Section of the Department of Multicultural Affairs.
What are your duties and responsibilities in relation to the removal of people from Australia?---I look after the refused entry cases and part of that is taking them through the removal process.
HIS HONOUR: Sorry, taking them through?---The removal process from Australia.
MS MORTIMER: Can Ms Nougher be shown the documents produced by the Department of Immigration in answer to the subpoena? There are two ‑ ‑ ‑
HIS HONOUR: I think you have custody of it at the moment.
MS MORTIMER: Ms Nougher, I want to show you two documents that appear on this file. The first is a facsimile transmission from you dated 27 October 1998 to DIMA in Pretoria, and it says cc Nairobi, and then there is another facsimile transmission from you to DIMA, Pretoria and DIMA, Nairobi dated 29 October 1998.
HIS HONOUR: The first fax of 27 October 1998.
MS MORTIMER: Is that a facsimile to officers of the Department of Immigration in the High Commission in Pretoria?---That is correct.
And is the copy that goes to Nairobi to officers of the Department of Immigration in the High Commission in Nairobi?---That is correct.
And what is the purpose of faxing the details of this applicant’s removal to those people?---It is a departmental procedure that when we remove someone from Australia, we let the transit points along the way know of the removal arrangements.
Yes, why is that?---It is a safeguard that if the plane is delayed at any of the transit points along the way, assistance may be required by our officers overseas.
But you have no officers who are involved in the transportation of this applicant from Johannesburg to Mogadishu, so what is the purpose of notifying, in relation to this applicant, those High Commissions?---As I said, it is just departmental procedures that we notify our officers overseas.
If something were to happen to this applicant in his transportation between Johannesburg and Mogadishu, for example, some kind of mistreatment, is that a matter about which the officers of your department in either Nairobi or Pretoria might concern themselves?---I’m sorry, I can’t answer that.
Why not?---Well, there’s evidence that - - -
No, I am asking you, hypothetically, if this applicant were to complain - and it is entirely hypothetical – of his treatment when he arrives in Nairobi, is that a matter that your departmental officers in the High Commission in Nairobi would concern themselves with?---I can’t answer that. You would have to ask the officers in Pretoria or Nairobi.
All right. There is in evidence an exhibit to the affidavit of Carolyn Graydon - - -
HIS HONOUR: Just before we leave the facts, are we doing anything with that fact?
MS MORTIMER: I am sorry, your Honour. Yes, I seek to tender both the facsimile of 27 October and the facsimile of 29 October.
HIS HONOUR: Yes. Mr Gunst?
MR GUNST: I am not sure the witness has actually identified the second of those we have been taken to, your Honour.
MS MORTIMER: If that is so, your Honour, I apologise for that. If the witness could be shown the facsimile of 29 October.
Is that a document which you sent to the same members of the High Commission – DIMA members of the High Commission in Pretoria and in Nairobi?
MR GUNST: No objection, your Honour.
HIS HONOUR: Yes. Well now, rather than dismember the file, can we obtain copies and mark the copy as an exhibit? Is that convenient?
MS MORTIMER: Yes, of course, your Honour, that is convenient.
HIS HONOUR: Exhibit A1 will be copy facsimile, 27 October 1998, Nougher to Department of Immigration and Multicultural Affairs, Pretoria. Exhibit A2 will be copy facsimile, 29 October 1998, same originator, same destination. Steps can be taken to dismember that and copy that while we get on, can we?
EXHIBITS: Exhibit A1…..Facsimile dated 27 October
Exhibit A2…..Facsimile dated 29 October
MS MORTIMER: Yes, your Honour. Can Ms Nougher be shown exhibit 12 to the affidavit of Carolyn Graydon, sworn 3 November.
HIS HONOUR: Yes, the witness has it, Ms Mortimer.
MS MORTIMER: Thank you, your Honour.
Ms Nougher, that is a facsimile that you sent to – I am sorry, that is a response to your facsimile inquiring about whether P & I can obtain travel documents for Somali citizens?---That is correct.
The obtaining of travel documents, is that an aspect of your responsibilities in arranging the removal of people like this applicant from Australia?---In some cases, it is, yes.
HIS HONOUR: I am sorry, I did not hear the answer?---In some cases it is, your Honour.
MS MORTIMER: And is that invariably an activity that you conduct through a third party like P & I or does the Department sometimes obtain travel documents directly from consulates itself?---If there is a consulate in Australia we would approach the consulate directly. If there’s no consulate in Australia, as in this case, we approach P & I.
When you are communicating with the carrier who is responsible for the transportation of people such as the applicant, do you recommend to the carrier that they may, if they wish, avail themselves of the services of P & I International?---We do for travel document purposes, yes.
What about for escort purposes?---No.
So, the escort of these people is a matter with which the Department does not concern itself at all?---We don’t make recommendations about which body they should use as escorts, no.
Do you take any steps to ascertain who is to escort these people and the bona fides and the good reputation of the people that are appointed to escort people such as the applicant?---No, we don’t. That’s entirely up to the airline.
Does your Department make any inquiries about what precisely happens to a person such as this applicant when they arrive in Mogadishu?---No, we don’t.
Do you make any inquiries about whether the people are taken into custody, and on what basis?---No.
Do you make any inquiries about whether they are exposed to any risk of physical harm?---No.
Do you know personally what does happen to people who arrive at Mogadishu airport in the circumstances of the applicant?---No, I don’t.
I have no further questions for Ms Nougher.
HIS HONOUR: Yes, thank you. Mr Gunst.
CROSS-EXAMINED BY MR GUNST:
MR GUNST: Mr Nougher, two grounds are put before this Court. One relates to the decision of the Refugee Review Tribunal, and I don’t want to ask you anything about that. But the other ground is that it is said that it is proposed that this man will be “delivered into the custody of” a private contractor, namely, P & I Associates. Can I ask you to direct your mind to that proposition, please. Is the position that it was proposed and is proposed for the future that this man be taken from Melbourne to Perth on a domestic flight?---At this stage, yes.
And he would be escorted by an officer of the Department for that purpose?---Determination as to who’s going to escort him has not been made yet.
Thank you. He would then be taken to an international flight in Perth; the flight proposed being to Johannesburg, at first instance?---Can I just correct that? If this man is to be removed, the routing of how he gets back to his own country will be British Airways to make. We will be guided by their arrangements.
All right. the proposal on the flight that didn’t take place a little while ago was, though, Perth to Johannesburg?---That’s correct.
Once the man is put on the plane and the doors sealed, is it proposed that there be any presence of any officer of the Department accompanying this man?---Not from the Department, no.
Thank you.
HIS HONOUR: Thank you, Ms Nougher. If you could return the exhibit you have and then step down.
(THE WITNESS WITHDREW)
HIS HONOUR: Yes, Ms Mortimer. Do we now have all of the evidence upon which you move?
MS MORTIMER: I have not yet had the opportunity to examine the British Airways files, your Honour.
HIS HONOUR: Yes, do you wish to do that?
MS MORTIMER: No, your Honour. I am content to examine them at the conclusion of the hearing, depending on the orders your Honour makes. But I do not wish to put them - - -
HIS HONOUR: The question is have you put forward all of the material upon which you move?
MS MORTIMER: Yes. Your Honour, I am conscious that I do not want to take up any more of the time of the Court - - -
HIS HONOUR: I understand that but we have to get to an end of the material.
MS MORTIMER: Yes. Would it be convenient, your Honour, if the file is produced to my instructor while I address your Honour on the law and ‑ ‑ ‑
HIS HONOUR: There is this difficulty – it is a difficulty inherent in permitting oral evidence or return of subpoenas on applications of this kind, which is a process that is not to be encouraged and I permitted in this case only after most anxious consideration – I have to know what the material is on which you move. If you wish time to look at the documents, then time you must have. But I will not begin the submissions until I know that you have put forward the whole of your evidence.
MS MORTIMER: Then, in that case, your Honour, I do ask for an adjournment of 10 minutes.
HIS HONOUR: Yes. I will come back at 11.40.
AT 11.20 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.42 AM:
HIS HONOUR: Ms Mortimer?
MS MORTIMER: Your Honour, I have examined the file. There are three documents from it which I wish to tender. Now, I have had a discussion with Ms Daley, who represents British Airways, and unless your Honour requires it I do not propose to call the representative. I just propose to convey to your Honour and to the Court what I have been instructed in relation to the identification of these documents.
HIS HONOUR: Yes, well, I do not think it is so much up to me as to Mr Gunst.
MS MORTIMER: No, if my learned friend objects to that, perhaps the gentleman ought to be called.
MR GUNST: I do not know what is going to be said, your Honour.
HIS HONOUR: Come on. Do not counsel talk at the Bar table any more? Can we not sort this sort of thing out?
MR GUNST: I am happy for the documents to be tendered.
HIS HONOUR: Right.
MS MORTIMER: The first two documents are two handwritten file notes dated 29 October 1998 and Ms Daley has instructed me that they are written by Sue Jones who is an employee of British Airways responsible for the conduct of this file and the other document is a brochure undated headed “P & I Associates International Pty Ltd”. I tender those, your Honour.
HIS HONOUR: Yes. Exhibit A3 will be file note dated 29 October 1998 entitled “Things to do”, exhibit A4 will be file note dated 29 October 1998 entitled “Rundown of today’s events”, exhibit A5 will be brochure entitled “P & I Associates International Pty Ltd”.
EXHIBITS: Exhibit A3…..File note dated 29 October 1998.
Exhibit A4…..File note dated 29 October 1998.
Exhibit A5…..Brochure.
Now, do you want me to look at these now or do you propose to take me through them? How best ‑ ‑ ‑
MS MORTIMER: I will draw your Honour’s attention to the parts that I wish to ‑ ‑ ‑
HIS HONOUR: Yes, Ms Mortimer.
MS MORTIMER: Your Honour, there are three affidavits from Ms Graydon and the prosecutor moves the Court on the basis of each of those.
HIS HONOUR: Yes.
MS MORTIMER: There is also an affidavit from Ms Ngo, my learned friend’s instructing solicitor, and from Mr Read. We rely on those as well, your Honour.
HIS HONOUR: Yes.
MS MORTIMER: That is the sum of the evidence upon which we move the Court.
HIS HONOUR: Yes.
MR GUNST: Your Honour, save for the affidavits of Ms Ngo and Mr Read that my learned friend has already referred to, there is one document that I wish to put in evidence from the departmental file that has been subpoenaed.
HIS HONOUR: Yes.
MR GUNST: It is a fax dated 15 September 1998 and I have tabbed it in the corner and I will hand it up to your Honour.
HIS HONOUR: Have you seen this, Ms Mortimer?
MS MORTIMER: I must have when I looked through.
HIS HONOUR: Yes.
MS MORTIMER: Yes.
MR GUNST: It is a fax from Interpol to the Australian Federal Police in Canberra dated 15 September 1998.
HIS HONOUR: Exhibit R2 then will be copy facsimile 15 September 1998 Interpol Canberra to AFP Southern Region.
EXHIBIT: Exhibit R2 facsimile 15 September 1998.
Yes.
MR GUNST: Your Honour, that completes the evidence on behalf of the first respondent.
HIS HONOUR: Yes, thank you. Yes, Ms Mortimer.
MS MORTIMER: Does your Honour have a copy of our amended submissions?
HIS HONOUR: Yes, I do.
MS MORTIMER: And does your Honour also have a copy of the amended draft order nisi which ought to have been faxed at the same ‑ ‑ ‑
HIS HONOUR: Then no doubt I do but I have not lighted on it. Just a moment, Ms Mortimer. Ms Daley?
MS DALEY: Your Honour, I was wondering if this might be an appropriate moment to request that…..and Mr Smith from British Airways be excused.
HIS HONOUR: Yes, I had hoped that I had earlier but if I have not, then thank you for your attendance, Mr Smith. You are excused further attendance.
MS DALEY: Thank you, your Honour.
HIS HONOUR: Thank you, Ms Daley.
MS MORTIMER: Your Honour, I do apologise. It is entirely a breakdown in the communications in my chambers this morning and it does not appear to have been faxed with the submissions. I will ask my instructor to have it copied. It essentially reflects what we are saying in the submissions, your Honour.
HIS HONOUR: Yes, thank you.
MS MORTIMER: Your Honour, we have set out the serious questions that we say there are to be tried in paragraph 3 of those submissions.
HIS HONOUR: Yes.
MS MORTIMER: We will take your Honour first to what we say in paragraph 2 and that is – and we rely to some significant degree on this, your Honour, that the question of the construction of the removal power under the Migration Act is a novel one and the question even whether it ought to be construed in the same way as the deportation power or differently is not a question that has been addressed by any court.
We say that the increasing exercise of the power of removal in relation to unsuccessful refugee applicants is a matter that your Honour ought to take into account in determining that it is a serious question about the nature and extent of that removal power.
HIS HONOUR: Assume for the purposes of argument that that is so. At least as at present advised it seems to me that the principal area for debate is whether a sufficient factual substratum has been laid to raise a question that is a lively question.
MS MORTIMER: Your Honour, we say that the factual substratum in relation to that – well, there are two aspects of that lawfulness of removal question and there are two aspects of the factual substratum. The first is the notion of extraterritorial custodial restraint.
HIS HONOUR: What evidence is there that there will be any extra territorial restraint of this man other than the physical restraint imposed by travel in an aircraft and the physical restraints implicit in being in a transit area of an international airport? Now those are constraints, but I would not understand either of those to be the basis for your complaint, but am I wrong in that?
MS MORTIMER: No, your Honour. Your Honour is correct. The evidence about that relates to the holding, for example, if your Honour looks at the exhibit to Mr Read’s affidavit, the last exhibit JLR15, which is the answer to a series of questions.
HIS HONOUR: Sorry, start with 2 or start with 15?
MS MORTIMER: JLR15, your Honour.
HIS HONOUR: Yes.
MS MORTIMER: That SE “will be accommodated in the Transit Hotel at Johannesburg Airport” and that he will be –
A South African national has been enlisted to escort SE up to Nairobi…..and from Nairobi, a Tanzanian national will be taking over.
Now, the precise details of what is to happen to the applicant are not known and, in my submission, could not be put before this Court in the time available because they require evidence from those people about what is to happen.
The point is, your Honour, that from - in my submission, what the evidence does demonstrate is that from the time that this applicant leaves Melbourne Airport to the time he is delivered to Mogadishu he is not free to do anything that he is not permitted to do by the people escorting him. Now, that is custodial restraint.
HIS HONOUR: Well, again, if that is accepted purely for the purposes of argument, what evidence is there that that is at the behest of the Department as opposed to being at the behest of the carrier.
MS MORTIMER: The evidence is the basis for which the carrier is undertaking that, your Honour, and that is what is called the notice to remove and that is exhibited to Mr Read’s – that is JLR2, your Honour.
HIS HONOUR: Yes, I have that.
MS MORTIMER: Our submission is that the entire basis of that notice is section 217 and the notice that follows it which is headed “Subsection 217 – Notice to Remove”.. The carrier is acting entirely pursuant to a direction of the first respondent.
HIS HONOUR: That direction being a direction to remove a named person.
MS MORTIMER: That is so, your Honour.
HIS HONOUR: Is it a direction that goes to manner of removal?
MS MORTIMER: Our submission, your Honour, is that it is only a direction about the transportation and this is where one, in my submission, does have to be a little careful with language. That is the notion of removal, in our submission, is an exercise of a power that resides in a nation State because it is a nation State. No carrier has that power. What the carrier has is a statutory obligation to transport and that is the word used in section 217.
HIS HONOUR: Yes.
MS MORTIMER: So that our submission is that is the extent of it. The carrier is simply the vehicle by which the Minister exercises the power to remove so that so long as that power of removal continues, the carrier is no more than a vehicle.
HIS HONOUR: Yes. What is there then that demonstrates that it is arguable or that there is a serious question to investigate of the kind that could be captured this way, perhaps, that the Department or the Minister is directing BA to confine this man?
MS MORTIMER: Your Honour, my submission ought to be put like this, that the only lawful reason for any kind of custodial restraint is as an incident of the power to remove, the sovereign power to remove.
HIS HONOUR: Yes. Assume that.
MS MORTIMER: If, in directing a carrier to take part in the exercise of that sovereign power by providing the vehicle, the Minister acquiesces even in the use of the private contractors to restrain a person, then the Minister is participating in the extraterritorial restraint of someone with no statutory basis. Those people have no statutory authority to restrain this applicant. The Minister’s officers do and, on our argument, if the removal continues until the person reaches the destination, then if the Minister’s officers were to be doing this, then they would be, on the current version of the Migration Act, acting with some kind of statutory authority. But there is no such statutory authority in terms of the participation in that act of removal that is vested in any third party.
HIS HONOUR: Again, if that is accepted for the purposes of argument, I think my question and the difficulty I, at the moment, want to identify for you is what is there that shows as a matter of fact that the Minister, Department, Australian authorities direct, permit or acquiesce in the restraint of this man in the course of the journey otherwise than by those necessary physical restraints of the fact that you are up in the air or you are in a transit lounge? If we leave aside the fact that you are in an aircraft and you cannot get off it and we leave aside the fact that you are in a transit lounge and cannot leave it, what evidence or material is there that shows a case for inquiry of direction, knowledge, acquiescence in some further or other restraint of this man?
MS MORTIMER: Your Honour, we say we need go no further than the clear evidence that this man is accompanied and escorted the entire way. Now, this requires some, in my submission, careful analysis of precisely what an airline is allowed to do. Now, if one looks at the way that it has been put in the respondents’ submissions, an airline clearly and a captain is clearly allowed to do whatever he considers necessary for the protection of his passengers or the protection of the aircraft. He is not entitled to do it, nor is anyone else, for the reason of simply restraining the individual to ensure that the individual gets from A to B. That is not the purpose and I propose to take your Honour to a case of Schlieske, which is a Full Court decision of the Federal Court, where the same kind of issue was addressed in relation to extradition.
HIS HONOUR: Again, I ‑ ‑ ‑
MS MORTIMER: So, the factual substratum, your Honour, is simply that the man is escorted the entire way and is escorted by people, on the evidence that your Honour now has, who specialise in the transport of, I think it is called in that brochure of the P & I International, inadmissables, so that they are and your Honour might care to read that brochure, that is the firm charged with responsibility for conducting these people.
HIS HONOUR: But charged by who?
MS MORTIMER: It is a chain of charging, your Honour, so it comes from the Minister and there is a direction as to one aspect of the removal being the transportation. You see, your Honour, there is another aspect and that is, for example, the obtaining of the travel documents. Now, Ms Nougher’s evidence was that DIMA does that itself, unless it cannot find a consulate in which it contracts it out. There are several aspects to the removal process. Transportation is the most obvious one.
HIS HONOUR: Yes.
MS MORTIMER: The factual substratum, we say that all we need to demonstrate at this stage is that this applicant is in custody and he is in the custody of a private contractor. Now, the contractual relationship may be between the contractor and British Airways and it seems, at the moment, your Honour, that that is the evidence before this Court, but the only need for that contractual relationship stems from the direction from the Minister to British Airways to remove this man. So that these people are still acting only because of a direction given under the Migration Act by the Minister.
If one looks at the sequence of events, your Honour, the factual sequence of events, my submission from the evidence is this that the person remains in the custody of offices of the Commonwealth until he reaches the door of the plane. Now, at that point it cannot be contended, in my submission, that the removal is complete. He is then handed over. Now, he is not, in my submission, on the evidence, simply handed over into the custody of the captain, he is handed over into the custody of a particular private contractor who has been paid to escort that person and to ensure that person reaches a particular destination. Now, that is an aspect, in my submission, of the custody, it is not simply a protective mechanism for the duration of the flight. It is designed to ensure that this man will reach a particular destination and will not be allowed to go anywhere else. That is the reason that there is a sequence that is obvious on the evidence, your Honour, between here, Johannesburg, Nairobi, Mogadishu and different people taking over at each stage.
So, we say that is the factual substratum and we say that we ought not at this stage, your Honour, have to go beyond that. All we need demonstrate, and we say that we have, on the evidence, is that this person is being taken against his will, that he is not free to leave, is not free to choose his destination and he will be restrained until he reaches it. Now, your Honour, I want to draw your Honour’s attention to the handwritten note that I handed up from the file of Ms Jones.
HIS HONOUR: Yes.
MS MORTIMER: Are the tabs still on that, your Honour?
HIS HONOUR: Yes.
MS MORTIMER: There are a number of paragraphs there in relation to a proposal from the private contractor, that if there were any difficultly the applicant would be sedated. Now, that is a proposal that was rejected by Qantas Airways and it was rejected by the Department. Nevertheless, your Honour, we say that that is significant for your Honour to take into account because that demonstrates the attitude of the private contractor. That demonstrates what the private contractor thinks its responsibilities might comprehend. Now, it has been rejected as an idea between, on that document, your Honour, between Perth and Johannesburg but ‑ ‑ ‑
HIS HONOUR: Been rejected with some asperity by Immigration ‑ ‑ ‑
MS MORTIMER: Of course, your Honour, and quite property so, we say, but the journey continues for this applicant beyond Johannesburg and it continues, on the evidence before this Court in exhibit JLR15, in the custody of that private organisation.
HIS HONOUR: Well, you say “in the custody of”. What is your best evidence to demonstrate that that is the apt description?
MS MORTIMER: The answer to the question posed by British Airways of P & I Associates in exhibit JLR15:
At what point do P & I Associates step in and take responsibility for SE? P & I Associates will take responsibility –
I withdraw that, your Honour:
for the applicant, on arrival in Johannesburg.
HIS HONOUR: Yes.
MS MORTIMER: Now, it is then asked – that statement, your Honour, needs to be viewed in conjunction with the evidence that the travel is to continue up to Mogadishu and the clear inference is that it is to continue in the control of P & O and the inference – well, the attitude, in my submission, your Honour, which is demonstrated in that handwritten file note is the attitude of the contractor and I do seek to distinguish that from the attitude of any of the authorities. The attitude of the contractor is that it is entitled to engage in all sorts of – well, engage in quite serious violations of this applicant’s liberty in order to achieve the task that it has been contracted for. That contemplates a notion of custody that could, in my submission, not be more obvious than the prospect of sedating someone.
HIS HONOUR: If, to take a purely hypothetical case, a person were removed from Australia by means of putting that person on an aircraft and the door being shut and that aircraft was travelling directly to the country of nationality of the person being removed, if the airline, whether for industrial or for other reasons, had a policy of always requiring a security employee of the airline to travel on flights on which a person was being removed, would the points which you now make be available, too, the purpose of the security employee being to deal with disturbance if the person being removed were to disturb the flight?
MS MORTIMER: If that is the purpose, your Honour, no, but if the purpose were to convey the person once he or she stepped off the plane at the other end, to ensure that he or she was conveyed to appropriate authorities, deliver to Immigration authorities and essentially surrendered to them, then my answer would be, “Yes, the argument is still available”.
HIS HONOUR: What is there to suggest surrender to Immigration authorities here?
MS MORTIMER: There is nothing, your Honour, because there is no evidence about - nobody seems to know, your Honour, what is to happen to this man when he lands in Mogadishu. Now, I will come to why we say that in itself is an unlawful exercise of the power of removal but there is no evidence and we quite frankly concede that to your Honour. We say that at this point the nature of the ‑ ‑ ‑
HIS HONOUR: But for the moment we are focussing on the method of transit?
MS MORTIMER: Yes.
HIS HONOUR: Not destination?
MS MORTIMER: Yes.
HIS HONOUR: In the case which I posit as a hypothetical, I would understand you to say the points you make are not available. What is it that distinguishes that case from this, so far as the evidence reveals?
MS MORTIMER: That the escort will continue to be with the applicant while he is in transit in Johannesburg, that there will be another escort that goes with him to Nairobi and that there will be yet another escort that goes with him to Mogadishu. Now, there is nothing in the evidence to suggest that those escorts are going to be anything other than continuously with the applicant. There is no evidence that they are to meet him only at the airport or to go and sit on the plane with him and it is not expressed, your Honour, but in my submission it is clear enough for the inference to be drawn that they are going to be accompanying him constantly and if that is so, then that is a different situation from the legitimate purpose of employing a security guard, perhaps – as your Honour says - perhaps because of industrial reasons to sit on the plane and ensure that that person does not violate the safety of other passengers or the safety of the aircraft.
So, that if the person were met at the door of the plane and were released at the other end, at the other door of the plane, we could have no complaint, your Honour. The fact that he is not, or your Honour might prefer to be – the inference – the clear inference, we say, that he is not, that he will continue to be guarded in transit until he gets on the next plane and in transit again until he gets on the next one, discloses, in our submission, that he is in custody because the aim is to deliver him to a place.
HIS HONOUR: Yes.
MS MORTIMER: The second aspect of the removal, your Honour, is that we say – and this is paragraph 3(b) of our serious questions list that:
The lawfulness of the removal (on the grounds of reasonableness) –
is a serious question where the:
removal involves delivery to a country in civil war and
where there is a substantial likelihood that he will be killed, detained arbitrarily, tortured, may disappear or suffer other serious harm.
Your Honour, I address that – it starts at about page 6 of the submissions under the heading “Reasonableness” and we start with the proposition that it is not lawful to place a non-citizen on a “ship going nowhere”. And, we start, also, your Honour, from the proposition that it would not be lawful t o take a person to the limit of the coastal sea and throw him overboard.
The reason behind that, your Honour, is because there are limits on the exercise of the power, and on that proposition we rely on what is said by the High Court in Znaty at pages 10 and 11. We also rely, your Honour, on the case of the Full Court of Federal Court in Schlieske (1988) 84 ALR 719 and I might just take your Honour to that. It is a decision of the Full Court. It is a case relating to deportation and the argument of the applicant in that case was that this purported deportation was in fact a disguised extradition and ought to be restrained on that basis. I want to draw your Honour’s attention to a number of comments that the court makes about the exercise of this power. I take your Honour first to page 720, a decision of Justice Fox about half way down where his Honour says:
There is no doubt that the mechanics of the deportation may involve the application of some force –
and then his Honour refers to Znaty and goes on to say:
and he may also, within reasonable bounds, select the manner of carriage, including in a case such as the present, the particular airline.
His Honour goes on to discuss that and down the bottom says about the country that the person would ordinarily be delivered to:
This last-mentioned country will normally be the country of nationality but it should be chosen with due regard for the proper exercise of the discretion.
This comes back, your Honour, to a point that I did make or attempt to make the other day that although in the Migration Act under section 198 there is an expression of a statutory duty, that is, an officer must remove, we say that is no more than the mechanics of how it is to happen but what is in fact happening is the exercise of a discretion that is – or an exercise of a power to remove. Again we come back to what the High Court says in Znaty and in Ferrando and in Robtelmes about the nature of the sovereign power. If it is to be exercised it is to be exercised, we say, according to some criterion of reasonableness.
What is reasonable may well change over time and that is what we say, your Honour. We say it depends upon now what is reasonable has to be looked at in terms of Australia’s obligations, international obligations in relation to both the return of refugees, the non-refoulement principle, in relation to the obligations that Australia has undertaken to protect human rights of individuals under the ICCPR, a right to be free of arbitrary detention, a right to liberty, a right to life, all those sorts of things; that when a power such as this is considered and when it is asked is it being exercised in a reasonable those matters, we say, must come into play and we say it is arguable, at least, and that is all your Honour has to be satisfied about today.
HIS HONOUR: Should I consider that argument on the assumption that there is no alternative destination, that it is Mogadishu or Australia?
MS MORTIMER: No, your Honour, you should not, because Mr Read’s evidence to your Honour this morning was that the Department does not canvass all the likely destinations.
HIS HONOUR: Nor does the applicant in this case. The applicant has put on no material suggesting another destination.
MS MORTIMER: No, your Honour.
HIS HONOUR: What evidence is there that there is anywhere other than Australia or the country of his claimed nationality?
MS MORTIMER: The choice may not be between removal to another – the choice may be either between removal to another destination where the applicant is able to make a further protection application. The choice may be between not removing at all. It may be, your Honour, and we say that this is an arguable proposition.
HIS HONOUR: Well, that is the point that I seek to identify. Is the argument an argument that says the choice to be made by the Department was remove or not remove because the only target for – only destination for removal was Mogadishu and if that is so the next point is how then do you cause that to fit with 198(6)?
MS MORTIMER: Your Honour, in my submission it is not clear enough for your Honour to accept that there is no alternative destination. That cannot be ‑ ‑ ‑
HIS HONOUR: But is there any evidence that would suggest there is? The applicant puts on no material suggesting another possibility.
MS MORTIMER: No, the applicant does not, your Honour, but that, again, is a matter that is – I withdraw that, your Honour. The applicant ought not to be forced, in my submission, in this context and the context of an interlocutory application, to have to canvass - and it would need extensive research to canvass where the applicant may be able to go, for example, to make an application to the United Nations High Commission of Refugees which has its own powers to make determinations of refugee status in the countries in which it operates. Now, that is an option that is open. Now, I concede that I am now giving evidence from the Bar table about that, your Honour, but in the short time that the applicant has had, in my submission, it is burdensome to require him to put on evidence about all the options that he may have.
What we have to satisfy your Honour about today, in my submission, is that the proposition that removal to a country that is in a state of civil war, where there is a high likelihood of serious harm to an applicant, for whatever reason, put the convention to one side, for whatever reason is an unreasonable exercise of the power to remove.
Power to remove is not limited to refugee applicants. It is a power to remove non‑citizens who satisfy the criteria in section 198. We say that is the extent of the proposition that we need to satisfy your Honour is arguable.
Now, it may turn out when the evidence is examined that, in fact, there is no alternative at all to sending this applicant back to Somalia, or keeping him here. That, in our submission, is a matter that would require considerable investigation, including inquiries at the United Nations High Commission on refugees.
HIS HONOUR: Assume that at the end of that inquiry it were found that the only destination to which this man could go is Somalia. How would that then sit with 198(6) and the obligation to remove? Is the obligation to remove to be cut down by reading it as “obliged to remove unless”? If that is so, what is the “unless” clause?
MS MORTIMER: Your Honour, the obligation to remove is, according to the words of the statute, to “remove as soon as…..practicable”.
HIS HONOUR: “Reasonably practicable”.
MS MORTIMER: “Reasonably practicable”. Again, your Honour, our submission is that those words connote some assessment of what is practicable. Practicable, in our submission, in 1998, in the context of the other obligations that Australia has, must include some assessment of whether this person is likely to be exposed to serious threat to his life if he is returned. Our submission would be that those words ought not to be construed as imposing a statutory obligation on an officer of the Minister to remove a person where the only place the person can go is somewhere where there is a high likelihood that they may suffer serious harm. In our submission, it is arguable that that is imposing a statutory obligation on an officer that is in direct violation of some of Australia’s international obligations. That, in my submission, would not be a construction that the Court ought to favour, and that is an arguable proposition, in my submission.
Your Honour, I address a number of matters in relation to what is reasonable in those paragraphs, and in paragraph 22 ‑ ‑ ‑
HIS HONOUR: Is there anything other than the passage in Justice Fox’s judgment in Schlieske that you ‑ ‑ ‑
MS MORTIMER: Sorry, your Honour, yes.
HIS HONOUR: I diverted you.
MS MORTIMER: I want to refer your Honour to page 727 of that decision, judgment of their Honours Justices Wilcox and French, where their Honours refer at the top to Znaty and then say:
However, Znaty is notable for its implicit shift from the view that ministerial purpose was irrelevant to propriety of the exercise of the power.
Then again, that is the kind of consideration that we say is relevant in this case because the nature of Australia’s obligations internationally has shifted, and it may be that some of the statements that were made earlier in early judicial authorities without qualification do need to be qualified, and that a power that may, in 1901, have been seen as essentially completely unfettered and completely unqualified is not so seen in 1998.
HIS HONOUR: But the hypothesis from which the argument must proceed is that this man has properly been found not to be a refugee.
MS MORTIMER: That is so, your Honour.
HIS HONOUR: If there is doubt about that finding then other considerations intrude, of course, at once.
MS MORTIMER: That is so, your Honour.
HIS HONOUR: So, the contention must be that notwithstanding he is not a refugee, he may not be removed.
MS MORTIMER: Yes, your Honour, that is right. So the focus is not so much on the Refugees Convention and not so much on the non-refoulement provisions which I concede are quite likely to be interpreted as applying only to people who have been found to be refugees. But, the concentration is on other international obligations like the International Covenant on Civil and Political Rights.
HIS HONOUR: Are they given effect to by statute, relevantly?
MS MORTIMER: It comes back to the principles that this Court has now made clear, that if one is considering the proper construction of a statute, one ‑ ‑ ‑
HIS HONOUR: You construe in light of the international obligations, CTO, particularly.
MS MORTIMER: Yes.
HIS HONOUR: Yes.
MS MORTIMER: We do not contend that this applicant’s right not to be arbitrarily detained, for example, is something he can enforce directly through this proceeding, or through any other proceeding in this Court. But, what we are saying is that where the power to remove is concerned, it needs to be construed in accordance with the obligations that Australia has undertaken, unless Parliament, expressly, makes it clear that that is not to be so.
HIS HONOUR: Yes.
Paragraph 22 of my submissions is divided into three subparagraphs about why we say this exercise is not reasonable, and I want to just direct your Honour to the evidence that we rely on about that; and that is in relation to the factual situation in Somalia. The evidence we rely on is, firstly, what the RRT said in its own decision, which is exhibit CJG2 to the affidavit of Carolyn Graydon. Does your Honour have that?
HIS HONOUR: Yes.
MS MORTIMER: Or, perhaps, does your Honour wish me to take you to these or ‑ ‑ ‑
HIS HONOUR: If you give me a note of which they are.
MS MORTIMER: Second is the submission of the then lawyers for the applicant to the RRT, which is exhibit MN13 to the affidavit of Miss Ngo, pages 4 to 6 of that. And, the third is the submission made in support of the application for exercise of discretion under section 417 of the Migration Act, and that submission was made by the Refugee Immigration and Legal Centre. That is exhibit CJG3 to Miss Graydon’s affidavit. I add that to the body of evidence, because, as your Honour will see in these submissions, our contention is that that assessment, whether it is reasonable or not, is to be made, not necessarily with an end point at the RRT decision, but is to be made when the power is to be exercised.
The remaining serious questions that we point to are three errors of law in the RRT’s decision, and I take your Honour to those. They appear at the top of page 8 of the outline of argument. The first is what I will call the Abdalla point. Perhaps this is a convenient time for your Honour to go to the RRT decision.
HIS HONOUR: Yes, I have that.
MS MORTIMER: Your Honour is more well organised than I am.
HIS HONOUR: It will not last, Ms Mortimer.
MS MORTIMER: What the Tribunal says on the second‑last page of that decision; the relevant parts are up the top:
Fleeing the consequences of war or civil disturbance does not being the Applicant within the Refugees Convention.
That is repeated further down.
If one looks at the identification of the error by the Full Court of the Federal Court in Abdalla’s Case – does your Honour have a copy of that?
HIS HONOUR: Yes, I think I do. I told you it would not last, Ms Mortimer.
MS MORTIMER: We have a copy here, your Honour.
HIS HONOUR: I will end up like every judge who simply eats copies of documents. Yes, a cry from the Bench, “I do not have one of those”. “No, your Honour has 12 of them.” I now have it.
MS MORTIMER: I am pleased to hear it, your Honour. Page 8 of the Internet copy.
HIS HONOUR: Oh, the Net copy. I have the slip print.
MS MORTIMER: It is towards the end of the judgment. I will just borrow my learned friend’s for a moment and locate the passage.
HIS HONOUR: Yes, page 8 of the Net.
MS MORTIMER: There is a passage, your Honour, that starts the third paragraph down, “This precise question”. That is the question which is referred to in the paragraph above:
whether recurring communal violence amounts to ‘persecution’ depends on whether there is a purpose behind the recurring pattern which is referrable to a Convention ground.
What the Full Court says is:
This precise question as to whether the present circumstances amounted to persecution was apparently not investigated before the RRT –
and we emphasise the next bit, your Honour:
presumably because the decision‑maker formed the view that communal violence within the framework of a civil war is not a form of ‘persecution’ within the meaning of the Convention. This approach, in our view, is not correct. Much will depend on the purposes for which the war is being fought. For example, if it is fought to eliminate or punish members of another clan, it may amount to ‘persecution’ for a Convention reason.
We say that the brevity with which the RRT dealt with this issue discloses precisely that error of law. That is, because the decision‑maker, the Tribunal, had formed a view that “Fleeing the consequences of war or civil disturbance” could not bring the applicant within the Refugees Convention. As we said to your Honour the other day, and our submission is that that proposition is far too broad, and far too generalised. What Abdalla clarifies is that one must look behind, or look into, what is happening in a civil war, and the Tribunal is required to ask itself, “What is the basis for this person being persecuted? Is there a Convention basis?”. It is not enough simply to look at the broad fact that what is occurring to this person is happening in the context of a civil disturbance.
It is put against us that there are no findings of fact in the same way that there are findings of fact in Abdalla. Our submission about that, your Honour, is that that misses the point because – and this is what we submit at paragraph 26 – if there is an error of law, the kind that we have identified, that is, an asking of the wrong question, then the fact‑finding process itself is likely to be infected with that error, and that is what we say happened here. If the Tribunal has in its mind the wrong question, and bear in mind, your Honour, we are dealing with an inquisitorial Tribunal where there is no representation, in fact, at this hearing, then, if the Tribunal has in its own mind the wrong question, the nature of the questions it asks, and the fact‑finding exercise that it conducts, are likely to be infected.
HIS HONOUR: What then is the question that the Tribunal was addressing in its reasons in the paragraph immediately preceding the heading, “Conclusion”? You see the one, “Given that the Applicant has not been”. What question was it confronting then?
MS MORTIMER: It was not, in my submission, asking itself whether this applicant faced the risk of serious harm because of membership of his clan. It was asking did he face anything other than what everyone else was facing in the breakdown of law and order. It turned the question around, in my submission, and asked it the wrong way.
Your Honour, where there is an inquisitorial tribunal it is a very difficult exercise to work backwards through the fact‑finding process if the tribunal has asked itself the wrong question.
HIS HONOUR: I understand that. If one marries that paragraph with exhibit MN14 which is the transcript of the proceedings in the Tribunal, notably at page 22 lines 30 and following, and in particular the answer at line 38, question and an answer.
MS MORTIMER: On page?
HIS HONOUR: Twenty‑two; and I had in mind 30 to the end, but really it is 38 - Shikal were not involved in the fighting.
MS MORTIMER: No, your Honour, we say that that is unexceptional and consistent with the evidence that the applicant gave, and again, the question is not whether the applicant’s membership of a clan is tied to his proactive - or his clan’s proactive involvement.
HIS HONOUR: But if he goes back will he be persecuted because he is Shikal? That is a question, perhaps the question the Tribunal has to face, is it not?
MS MORTIMER: Yes, it is; and we say that there was a lot of evidence before the Tribunal. The Tribunal, in my submission, seemed to make some distinction between a person who was persecuted for a Convention reason, and was a victim, and that dichotomy appears both in the transcript, and I believe it also appears in the decision. In my submission, the examination is not is the clan one that is involved in the fighting, but it is the clan one – it can be asked is the clan one that is a victim; that is, a target of the fighting.
HIS HONOUR: There is information available to the Tribunal which indicates that members of the applicant’s clan face problems.
MS MORTIMER: That is country information, your Honour.
HIS HONOUR: I understand that.
MS MORTIMER: Yes.
HIS HONOUR: Has the Tribunal asked itself the right question is the point you seek to agitate.
MS MORTIMER: Yes.
HIS HONOUR: What I am trying to tease out is whether, in that paragraph, it appears that the Tribunal has addressed the question, “Will this man face problems if he goes back because he is Shikal?”. I know, so the argument might run, the Tribunal is saying perhaps, I, the Tribunal, may know that he is going back to a war‑torn country, at which everybody is at risk, but will he face problems because he is Shikal? What agitates my mind is whether that is the question that is addressed in that paragraph.
MS MORTIMER: My submission is that although that might be a superficially attractive way to read that reference to country information, and that is the only reference, the absence of any articulation by the Tribunal in terms of the way the applicant put his claims, and the absence of the articulation of the evidence that did relate to clan‑based persecution, suggests that it was not focusing on the right question at all.
It has turned its mind, in my submission superficially, to that one aspect, but if it had been undertaking the process of asking itself the right question, in my submission, it would have referred to the evidence that I set out at page 9 of the submissions, and particularly, your Honour, if your Honour looks at the documents referred to in paragraph 30, at exhibit MN4, that is a statement by the applicant, a short statement, your Honour - if your Honour could just pardon me a moment. In the first paragraph, your Honour, he deposes specifically to who were the perpetrators of the harm, and that has happened in the past, and he then says, half way down:
After the civil war, however, because my tribe was a religious tribe and our people were not armed, we were targeted by the more powerful tribes that are currently controlling Somalia.
It goes on to say that he was on the run. Now, he says at the bottom:
If I am to return to Somalia, given that I am from the Chikal tribe, I will be probably killed by the rival more powerful tribes who now control Somalia.
That is the nature of its claim. That is what is reiterated in the legal submissions filed on his behalf, which are exhibit MN13, page 3 of the submissions, “Claims and Submission”, under that heading, your Honour, due to the fact that he is a member of the Shikal tribe, while militia killed SE’s father and brother, the applicant’s sister committed suicide after being raped by the Hawiye Militia.
HIS HONOUR: Sorry, where are you, page?
MS MORTIMER: Page 2 of that submission, under the sub-heading “Claims and Submissions”. And if one looks, your Honour, at the way in which the Tribunal sets out the claims and the evidence in the decision, the only reference to those claims, in my submission, is one that somewhat misrepresents the claims, at the top of page 5 of the decision, where the Tribunal says:
The applicant is a member of the Shikal clan, which has had no involvement in the fighting. He claimed his clan are the victims of the war. He stated that he was forced to move when the war became fierce.
Now, in fact, his claim, in my submission, was a lot more specific than that. It says that he said he was a member of a clan that was targeted and he gave evidence of that targeting in the past and he deposed to his fear about that in the future. Now, if the Tribunal were asking itself the right question and concentrating on, even in the context of a civil war, this person’s fears of persecution for a Convention‑based reason, then the claims would not have been articulated in that sense, in my submission. The whole structure of the decision, in my submission, discloses that what is concentrated on by the Tribunal is the existence of a civil war, and whether the applicant faces any disproportionate threat of harm in relation to that.
HIS HONOUR: Is there anything in the oral proceedings before the Tribunal that you would point to as showing or suggesting that this man is subject to harm because he is Shikal?
MS MORTIMER: I will take your Honour to page 14 of the transcript.
HIS HONOUR: Fourteen, yes.
MS MORTIMER: Now, the point I want to make, your Honour, is that when it is asked what does the applicant say, it must be borne in mind that what is happening in this transcript is a question and answer by the Tribunal, in the absence of the legal representatives. So that, when the Tribunal asks, from about line 16, 17 downwards:
MR KISSANE: Was your father killed at one of the shops?
INTERPRETER: Yes.
MR KISSANE: So where…..
MR KISSANE: Was anyone else in your family killed?
MR KISSANE: When was that?
The Tribunal does not ask why. It does not ask the applicant to identify “Why do you say they were killed? Was it just because…”. It just simply does not explore that issue at all. It does ask why in relation ‑ ‑ ‑
HIS HONOUR: I am not sure that that is entirely fair to the Tribunal, is it, Ms Mortimer. If we go over to 15. Does not the Tribunal begin to explore it a little further? Perhaps I am wrong.
MS MORTIMER: In relation to the reason why the applicant’s father and brother were killed, your Honour, no, in my submission.
HIS HONOUR: Yes, I see.
MS MORTIMER: It does explore why the sister committed suicide and the answers to that - there appears to be one missing, which may be the critical answer, your Honour, and that may require the tape to be looked at again - but, clearly, it is answered that it was the rebels, the militia. But again, that issue is simply not explored. There is then, on page 15, your Honour, there is that comment about that the –
Shikal had no involvement in the fighting. They are victims.
Now, again, that does not prompt a question such as, “Why are they victims? What do you say it is about your clan that makes them victims?” The subject is not pursued and the Tribunal moves on. At the top of page 20, where the Tribunal asks the applicant:
MR KISSANE: What do you think would happen to you if you went back to Somalia?
INTERPRETER: Yes, I would be killed.
MR KISSANE: Who by? Who is after you in Somalia?
INTERPRETER: The people who already took my possessions and my shops, they are still there. If they saw me hanging around, they would see that I am first seeking revenge, or I am seeking my rights to get my shops back and my……. so I have to get away from their family and away from them -
That is, in my submission, clearly a reference to the people that have harmed his family in the past. If your Honour goes down further on that page, where the applicant gives some evidence about the need for him to move around, half way through the paragraph, about line 33, your Honour:
if I noticed that the people that I was working for them, if they thought that I am Shikal or I am from that clan, because my clan, as I told you, was a well‑known clan, then I had to leave to disguise my identity.
We say, your Honour, our submission is that the – and I ought to draw your Honour’s attention to one other passage in the applicant’s statement, I am sorry, yes, in the RRT decision, which we say is just, in terms of what I have already taken your Honour to, just plainly wrong, and that is three‑quarters of the way down, page 6, where the Tribunal says:
He describes his clan as the victims of war. He makes no claim that his clan has been targeted or the subject of any persistent harassment.
Now, that is, in my submission, clearly not so, on the basis of the submissions, his statements, the submissions made on his behalf. That is the whole basis of his claim. Now, it is not the Tribunal saying, “Well you have made that claim, and this is how you have articulated it, (a), (b), (c), (d) and (e), and I have asked you all these questions about it, and I do not believe you”. It is not saying that. It has, in our submission, approached the task of assessing this man’s claim and of questioning him in the Tribunal hearing in a manner that is infected with the same error that the Full Court has identified in Abdalla.
HIS HONOUR: Now, Ms Mortimer, it is about five or seven to one. How much longer, will your submissions occupy, do you think?
MS MORTIMER: I could probably be finished in 10 minutes, your Honour. Is that tempting enough.
HIS HONOUR: No answer I can usefully make to that sort of statement, Ms Mortimer. I will sit on for a time. I do want you to have sufficient opportunity to put the case as you see it should be put, but I will not go much past one o’clock.
MS MORTIMER: No, I understand, your Honour.
HIS HONOUR: Yes.
MS MORTIMER: Your Honour, the second ground on which we attack the Tribunal’s decision is unreasonableness and I have really taken your Honour to the aspects of the evidence about that. We set them out at paragraphs 29, and in terms of the evidence and the explicit claims we have set out at paragraph 30 ‑ ‑ ‑
HIS HONOUR: And that is Wednesbury unreasonableness.
MS MORTIMER: That is Wednesbury unreasonableness, yes, your Honour: No reasonable decision maker faced with that evidence and those claims could have made the finding that this Tribunal did, namely that neither the applicant nor his family were the specific targets of any instances of harassment serious enough to amount to persecution on account of the applicant’s membership of his clan. And I emphasise again, your Honour, that this ground would not available to us if all the applicant’s claims had been articulated by the Tribunal, and he had been questioned and the Tribunal had said, “I do not believe you, you are lying”. Then we would be in a different situation. But there is nothing to suggest, in this decision, that the Tribunal does not believe what the applicant has told them. So in that ‑ ‑ ‑
HIS HONOUR: The key question is, is it on account of membership, is it not? The Tribunal accepts that this man has had the disasters befall him that he recounted. The question is, is it on account of membership of the clan?
MS MORTIMER: That is so, your Honour, and what we say is that where the claims are clearly made, on that basis, and he continues, and his witnesses continue to talk about the targeting, the victimisation of the clan ‑ ‑ ‑
HIS HONOUR: You say that. I need to be taken, chapter and verse, to each of those because I must tell you, at the moment my impression is it just did not happen at the Tribunal, that there was not that sort of detail, and it may be that after the adjournment, you could take me chapter and verse to each item where you say this was before the tribunal.
MS MORTIMER: Your Honour, the submission I need to make to your Honour about that is tied up with our last ground, error of law, and that is that the absence of, shall we say, the right answers depend on what questions were asked, and particularly so where there is nobody there to tie up the loose ends afterwards, if the right questions have not been asked. And, therefore, where a Tribunal is charged with that duty of investigating this person’s claims, what we say is that if there is any basis whatsoever, that is if the claim is clearly articulated, as we say it was in this case, and there is evidence in terms of answers to some questions that are put, in terms of the evidence about what has happened to this man’s family, the Tribunal is obliged, in the proper discharge of its inquisitorial function, to ask those questions. It cannot, by not asking the questions, produce a situation where this applicant has his claim to a well‑founded fear of persecution found not to exist, because he did not know what information he had to volunteer.
If, as is the case – and I am really now straying onto our third ground, the Eshetu point, your Honour – and that is if this Tribunal is an expert tribunal, if this Tribunal is unavowedly inquisitorial and not adversarial, if all those things exist, then it must, if it is to accord substantial justice in the way it conducts it proceedings, act like one, and that is it must conduct itself in a way that it designed to ascertain the true nature of the applicant’s claims. It must give, in my submission, serious thought to how the questions need to be asked to illicit the evidence that it requires properly to adjudicate on the applicant’s claim. And in my submission, the absence of some answers in the transcript that might otherwise be helping me to now convince your Honour about the unreasonableness of the decision is directly due to the non-asking of the right questions. So we end up in a bit of a circle, your Honour, about proving unreasonableness where the applicant was not in a position to ensure that the right evidence was put.
HIS HONOUR: Yes, well perhaps we will take those things up again at 2.15.
MS MORTIMER: If your Honour pleases.
AT 1.00 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
HIS HONOUR: Yes, Ms Mortimer.
MS MORTIMER: Your Honour, just one matter on the factual substratum of the claim in relation to the applicant being in custody when he was taken from Tullamarine onwards. I will just refer your Honour to the applicant’s ‑ ‑ ‑
HIS HONOUR: From Tullamarine onwards, not from Perth onwards?
MS MORTIMER: Yes, from either place, your Honour. From the time he is placed on the plane, that is.
HIS HONOUR: The international flight not a domestic flight? Because at least one version of his removal would have had him going by domestic flight to Perth on to an international, and I understood there to be a different regime according to whether he was boarded on an international flight from the regime that would obtain if he were to be put on to a domestic flight for carriage to a point of international departure.
MS MORTIMER: My understanding, your Honour, is that there may have been a difference in relation to the first and second attempt but my understanding of the evidence is that the security officers on the second attempt that were proposed to be accompanying the applicant were accompanying him from Tullamarine to Johannesburg via Perth.
HIS HONOUR: Well, anyway what is the evidence to which you point?
MS MORTIMER: Paragraph 8 of the applicant’s affidavit sworn 5 November, your Honour, where he says that, about three lines down:
I went up the stairs with the man who was to escort me to South Africa and the airport security guard. I was half way up the stairs when I sat down and said “I am not going anywhere.” The escort who was taking me to Johannesburg said “I will carry you.” I said “OK, just do it then.” He told me that he would handcuff me and I told him that I was not a criminal –
and then he goes on to depose to a conversation. The point of referring your Honour to that is twofold. The first is, as is evident in my submission from the whole of this affidavit, this man has been taken against his will and that is the basis on which your Honour can infer that there is some kind of custody. But clearly again as the reference to sedation that I took your Honour to before, that the reference to handcuffs suggests that the people undertaking the task of escorting, as it has been described, of this person, believe that they are entitled to physically restrain him. And if, as the evidence seems to be, the physical involvement of officers of the Department ends at the bottom of the stairs of the aircraft, in my submission the question that the respondent needs to answer to this Court is by what authority, or under what authorisation can somebody who is not an officer restrain this applicant from that point on? Because he is still within Australia, he is still clearly within Australia. He is not even on the plane at that stage. And the question that has to be asked, if it is not being done by an officer of the Commonwealth, where is the authorisation to exercise some kind of restraint over this person?
Your Honour, in relation to the judicial review grounds in relation to the Tribunal’s decision, I do not propose to take your Honour back to anything in relation to unreasonableness. The submissions appear in the written submissions and in relation to the Eshetu point, your Honour, which is on page 10 of our written submissions, the way which we put that is expressed in paragraph 34 and the essence of that, your Honour, is that the RRT is obliged, we say, to question the applicant in a manner which identifies for the applicant how the Tribunal sees his claims being made, or capable of being made. Whether the Tribunal then accepts the claims is a matter for it, but it cannot discharge its duty, in our submission, to reach the correct and preferable decision which we say on an ordinary application of administrative law principles is what it has to do. It must reach the correct or preferable decision and it cannot do that if it does not articulate the nature of the claims and ask the questions, so that the deficiencies that your Honour, in my submission, quite rightly identified in terms of the transcript are, we say, deficiencies that need to be laid at the foot of the Tribunal in its failure to conduct the proceedings as it was required to conduct them.
And it is for that reason that I am not able to undertake that task your Honour suggested I might be able to of taking your Honour through any more evidence because the fact is, and the appalling fact, in my submission, for this applicant, is that it is not there because he was not asked the right questions and he had no lawyer there.
I believe your Honour may now have a copy of the amended draft order nisi. I gave it to your associate.
HIS HONOUR: Yes.
MS MORTIMER: I do not propose at the moment to take your Honour through it. It simply has been amended by underlining to more accurately reflect the way that we have put the case to your Honour this morning.
HIS HONOUR: Yes, thank you.
MS MORTIMER: If your Honour pleases, those are the submissions for the prosecutor.
HIS HONOUR: Yes, thank you, Ms Mortimer. Yes, Mr Gunst.
MR GUNST: Thank you, your Honour. Your Honour, three bases for the relief sought are put to the Court. Shortly stated in my submission, all three of those bases are without foundation and will be dismissed by your Honour.
I have addressed two of them in the outline of argument that your Honour should have. The third is an argument that seems to have crept into the draft order nisi this morning, and it is one which I will address as I go along. Can I just articulate the way in which I see the three arguments being put? Does your Honour have the outline of submissions there?
HIS HONOUR: Yes.
MR GUNST: Thank you. As I understood it, at least until this morning, it was paragraphs 1 and 2 at the bottom of the first page. The first argument is that it is unlawful to remove this man from Australia in a manner which involves delivering him into the custody of a private organisation, that is an organisation or person or persons who are not officers under the Migration Act. Shortly stated, there is just no factual basis for that proposition. That will not happen on the evidence and I will come to that in some little detail.
The second argument advanced last week was that the RRT decision was wrong in law because it was unreasonable within the Wednesbury proposition to the extent set out in Wednesbury’s Case. The third argument that is now advanced is that it would be unreasonable to remove this man to Somalia because Somalia is said to be in a state of civil war and turmoil. I will need to direct your Honour’s attention to some of the evidence that was, in fact, before the RRT about that. But shortly stated, the evidence indicates that although there was a civil war in Somalia between 1991 and 1997, there was a peace treaty between the factions in December of last year and, at least as at earlier this year, the peace treaty seems to be holding and whilst there used to be a lot of shooting and gun fire in Mogadishu, it is now quiet. And as one report says, “The guns are gone”, and I will take your Honour to the evidence about that.
There is one further thing that needs to be said about that. If that is right that one can look at the place ,and there is authority for the proposition that the power is exhausted when the person is removed from the country, it would amount, in effect, to compel the Minister to exercise the non‑compellable discretion that is set out in section 417 of the Act. Section 417 empowers the Minister to consider, and his discretion to this extent is non‑compellable, to determine whether somebody ought to be allowed to remain in this country on a humanitarian basis, even if they are not a refugee.
Your Honour will recall seeing in the materials that in fact this man, although he made an application to be considered a refugee, was found not to be by a departmental delegate. He appealed to the RRT and the RRT found that he was not a refugee. He has made two applications, as your Honour sees in the material, to the Minister to be allowed to stay here on humanitarian grounds, and on each occasion the Minister has, and correspondence indicated that he declines to entertain the application. That is a non‑compellable discretion. To import this argument that is now sought to be raised this morning would be to render that discretion compellable, in essence by a backdoor method.
Can I come back to address each of the arguments in the outline, then I will come back to that third argument if I may, your Honour. I have set out the evidence on page 2 of the outline. I mentioned this morning it did not get into the outline. There is an affidavit of my instructing solicitor, Ms Ngo, as well as the affidavit of Mr Read. I have noted some objections to some of the paragraphs in the applicant’s affidavit material. I will not take your Honour to those. The paragraphs are matters of irrelevance and my learned friend has not expressly relied upon them today, so I will pass over the ‑ ‑ ‑
HIS HONOUR: I think she did rely upon them. It had eluded me that there was objection taken to them. In the end, does anything turn on this?
MR GUNST: No, your Honour. It goes to some matters that do not really arise when one looks at the three issues that your Honour has to determine. I then set out at the bottom of page 2 and over onto page 3 a chronology in an endeavour to be of assistance to your Honour.
HIS HONOUR: Yes, I have read those, Mr Gunst.
MR GUNST: Can I then come to the question of removal which is set out under the heading on page 3 which goes to the first of the three arguments, because it does not arrive as a matter of fact. One needs to understand the framework however. Section 198, and in particular subsection (6), requires removal. Now, it is important to understand removal is not an option. Removal is what the Act requires and it is required to occur as soon as reasonably practicable. That is what the Act requires the Minister and the officers of the Department to do.
The Act defines “remove” as “remove from Australia” and as your Honour sees, I have attempted to chart the path through what that means. Australia is defined, and I have given your Honour a reference to the provisions of the Acts Interpretation Act.
HIS HONOUR: On this ground, Mr Gunst, it seems to me that if once we get into the law on it, there is ground for order nisi, that if you are to succeed in persuading me that order nisi should be refused, it is at the level of the facts.
MR GUNST: I will move to the facts in that case, your Honour. The law is as I have set it out on page 3. The evidence is that this man will be escorted by an officer of the Department, an officer within the meaning of the Act, from Melbourne to Perth. He will be taken to an international flight, a British Airways flight or a Qantas flight, but relevantly under the Act a British Airways flight for this purpose. He will be taken to the door of the aircraft, the door sealed, and the plane will take off. And 12 miles later, 12 miles out across the Indian Ocean from Perth, it will exit Australian airspace. He is in the custody of the Minister for Immigration up until he passes through the door of the aircraft and the door is sealed. That is a matter of fact, your Honour. He is in the custody of an officer, or officers, within the meaning of the Migration Act. Once he is in the aircraft, he is subject to the direction and control of the pilot of the aircraft, I beg your pardon, once the door is closed.
HIS HONOUR: I understand all of that. But the case against you is that there is enough material here showing inquiries by British Airways, publicity by P & I Associates, suggestions of unusual kinds by proposed escorts to suggest that the Minister either, or the Department, the authorities, know of or direct or acquiesce in steps being taken on the aircraft that would amount to him being placed in custody. That is as I understand the essence of the case put against you.
MR GUNST: Yes, and it is not correct as a matter of fact, your Honour. In Mr Read’s affidavit, for example, in paragraph 23 he says:
Should the prosecutor be removed in the future, it is not proposed that there will be an escort provided by the Department. In flight security is a matter for the airline carrier although I believe the airline will in fact be providing escorts to protect other passengers and the aircraft –
So the departmental involvement ends at the instant the man goes onto the plane, and I might say in respect of the point that my learned friend raised a moment ago, it is perfectly competent for reasonable force to be used to carry somebody up the stairs, for example. If the man sits down on the stairs, it is perfectly competent, whilst he is in detention, to use reasonable force to escort him onto the aircraft, nothing wrong with that whatsoever, perfectly consonant with the scheme of the Migration Act. As the authorities say, one is entitled to use a reasonable level of restraint or direction to render effective the removal.
What happens thereafter is as a matter of law, and as a matter of fact, the responsibility of the carrier that has the obligation to transport the person who the carrier itself had brought to Australia. The Minister ‑ ‑ ‑
HIS HONOUR: Is the removal that is to occur here a removal from Australia to somewhere?
MR GUNST: No, your Honour. It is a removal from Australia and as the authorities indicate, the removal power is exhausted at the moment the person leaves Australia’s territorial limits, subject to some small amount of necessary extraterritorial force to achieve or render effective the removal.
HIS HONOUR: Is the removal a removal by British Airways under the powers given under the Migration Act?
MR GUNST: No. British Airways is transporting the person.
HIS HONOUR: Yes. And is the removal to be effected on a particular flight, a flight having a particular destination?
MR GUNST: Those are two separate questions. As to any particular flight, no, save that the Minister has given a direction under section 217 and that is required to be effectuated within 72 hours, but no particular flight is specified. But to deal with the broad thrust of the second question that your Honour then put, the answer is yes. Once a flight is in fact arranged, then it will no doubt be because there are only so many flights per week from Perth to Africa, it will be of necessity one of a small number of flights.
HIS HONOUR: If we go to the Act, 217 permits the Secretary to give the controller of the vessel written notice requiring transport.
MR GUNST: Yes.
HIS HONOUR: Section 218 permits the Secretary to:
give the controller of a vessel…..written notice requiring the controller to transport the person from Australia to a destination –
and I omit words:
specified in the notice.
Is that occurring here?
MR GUNST: No, your Honour.
HIS HONOUR: What is the exhibit that is the notice in this case, 2 is it not, JLR2?
MR GUNST: Yes, your Honour, i t is the second part of JLR2. There are two pages of JLR2. The first is a notice of liability about detention costs, and your Honour can turn that page over. The second page is the notice under section 217(1). It is a direction to transport out within 72 hours, simpliciter.
HIS HONOUR: So no direction is given under 218?
MR GUNST: No.
HIS HONOUR: Therefore there is no opportunity for 220 to bite, 220 being that if you say, “Remove this person to country X”, and country X says, “We will not take him or her”, the Minister is then bound to revoke? Section 220 does not apply here?
MR GUNST: No, that is right, your Honour.
HIS HONOUR: Because 218 does not.
MR GUNST: Because 218 does not apply. Now, your Honour could properly and ought to draw an inference from all the material that in fact what has happened here is that procedures have been put in train to ensure that travel documents are in force, such that this man can be taken back to his country of origin. My learned friend asked this morning of Mr Read, “Why did you pick Somalia?”. The answer is obvious. This man is a Somali. It is his country of nationality and, in the absence of any other country that he might put evidence before the Court about having an entitlement to live in, Somalia is the country where one would ordinarily expect him to be taken back to. Or to put it another way, your Honour, it would be a competent application of the power under section 217 for the person to be removed from Australia to somewhere else. And as the High Court said in Ferrando v Pearce, that being a case where it was proposed to take a man back to Italy in 1918 and he did not want to go because he would be subject to military service and so on, the High Court said it would be competent for the Minister to put this man on a boat to China, if the Minister so determined.
The power is to remove from Australia; the destination is not important. Now, as a matter of practical reality, the Minister always tries to ensure that the person goes back to the right place, and your Honour can properly draw the inference here that that is exactly what has happened; that the travel arrangements have been put in place.
To adopt the argument your Honour put to my learned friend before lunch, there is no point of distinction between the arrangements that are proposed here or, in fact, taking an international flight directly from Melbourne to Mogadishu. It is just that, as it turns out, there are not any international flights between Melbourne and Mogadishu. But there is no difference in principle between the Minister hiring an aircraft specifically to take this man from Melbourne non-stop to Mogadishu or flying him under escort to Perth, putting him on an aircraft to Perth, Perth to Johannesburg, Johannesburg to Nairobi, Nairobi to Mogadishu, because at each instance he is either in a sealed aircraft in the air or in transit in some other country.
HIS HONOUR: What, if any, conclusion do you say I should reach about what will happen to this man in, firstly, Johannesburg; secondly, Nairobi?
MR GUNST: The evidence is that he will be held in transit, your Honour, and if it is overnight he would be put up at the transit hotel in Johannesburg. That is in the various faxes and other documents about the travel arrangements.
HIS HONOUR: What, if any, conclusion do you say I should reach about the role of P & I in connection with what happens at those two ports?
MR GUNST: I say two things, your Honour: first of all, P & I are not officers of the Commonwealth and they are not servants or agents of any officer of the Commonwealth.
HIS HONOUR: Indeed, that I think is the point that is made against you.
MR GUNST: That brings me back to the law, your Honour, about the exhaustion of the power to remove being at the point the aircraft goes over the 12-mile limit, and if that is right, of course, then the provisions of section 75 are exhausted when one reaches the outer limits of the expression “officers of the Commonwealth”, but what is done by anybody from the airline or anybody engaged by the airline, either on the flight to Johannesburg or on a flight from Johannesburg to Nairobi and onwards, is a matter for the airline and, for that matter, for the laws of the country in which it takes place.
HIS HONOUR: But of what concern is it of the Department what this man does in Johannesburg transit lounges?
MR GUNST: None whatsoever, your Honour. As a matter of law, it is not competent for the Minister for Immigration to presume to say what a citizen of Somalia can or cannot do in the transit lounge in Johannesburg.
HIS HONOUR: And of what concern is it to the carrier that he is required to transport him out of Australia what he does in the transit lounge?
MR GUNST: None whatsoever, one would think, your Honour. It may very well be of interest to the Government of the Republic of South Africa, because they are as entitled, as is this country, to admit or not, persons who arrive on their doorstep.
HIS HONOUR: I understand that.
MR GUNST: But, so long as the man is within the precincts of the transit lounge, he does not fall foul of any South African law, so long as he does not otherwise commit an offence under the laws of South Africa, he does not run amok or injure any other passenger ‑ ‑ ‑
HIS HONOUR: I understand all that, but that then leads to the further question, why are all these arrangements made? Trying to test the argument against you as best I can, it seems to me that the argument might run this way: it is no concern of the Department once he has left the 12-mile limit; it is no concern of the transporting carrier what he does in Johannesburg, yet we see all this about P & I, and there would be debate between the two of you about what all that means or what its significance is, but that suggests that there is a case for inquiry about arrangements that are made. Now, perhaps I do the case against you an injustice. No doubt I will hear from Ms Mortimer about that presently.
MR GUNST: If the Minister for Immigration had some responsibility for what happens once the person enters South African territory, then there might be some ground for inquiry, your Honour, but the Minister’s power, and, for that matter, duty, ends when the aircraft leaves Australian airspace. At that stage the man is being physically conveyed in a sealed unit at 30,000 feet, along with a number of other passengers and crew. He is the responsibility of the pilot in command of the aircraft. Once he lands in Johannnesburg he is, so far as Australian law is concerned, and, more particularly, so far as the Minister for Immigration is concerned, free to do what he likes.
HIS HONOUR: And on the evidence, as I would understand it, you say I should conclude that there is no case for inquiry that the Minister or Department - and I am using the two absolutely interchangeably - is directing, conniving, knowing, acquiescing, in whatever arrangements may be made at that point?
MR GUNST: Absolutely not, your Honour, absolutely not. If the man was in fact restrained by some subordinate of British Airways, whether it be an employee or some independent contractor, he may well have entitlement to bring a proceeding in South Africa, but there is no entitlement, with respect ‑ ‑ ‑
HIS HONOUR: It is all a bit hollow, is it not, Mr Gunst?
MR GUNST: He has brought this claim to the highest court in this country from the detention centre here in Melbourne, your Honour, and it is the new South Africa.
HIS HONOUR: Well, I am not embarking on those waters, Mr Gunst. All I can see is the waves rising.
MR GUNST: There is no reason to suppose that if some illegality is committed, vis-à-vis in the transit lounge in Johannesburg or in any other place, he cannot bring an application or, to put it in another way, in a court of competent jurisdiction, which is not to say that this Court is that court of competent jurisdiction.
HIS HONOUR: Well, the point perhaps might be tested this way: assume the hypothetical I put to Ms Mortimer of the removee – to use that dreadful expression – being simply put on the aircraft, but the airline saying, “Well, because our cabin crew want it, we will have security”, and the security person takes it into his or her head to take a dislike to the person and promptly slap handcuffs on them, though they had been sitting meekly eating their tray of food. That may give them all sorts of theoretical rights against the airline or perhaps the security person but none, you would say, against this government?
MR GUNST: None against the Minister for Immigration; none against any officer of the Commonwealth and that is, with respect, the extent of your Honour’s jurisdiction in this matter. It matters not, of course, it is trite to say, whether the airline security person is a direct employee or whether he is an independent contractor; it does not matter whether the airline determines, as your Honour said, for industrial purposes, for example. It may very well be that airline cabin crew require, as a condition of their award, to have a security person on board rather than the hostesses being required to subdue somebody in the event that something happened. One could very well foresee that being a condition of award.
HIS HONOUR: At least, as at present advised, Mr Gunst, it seems to me that on this aspect of Ms Mortimer’s case, that the case comes down to that factual question of what inference, if any, should I draw about, putting it as broadly and as neutrally as I may, the role of any commercial organisation after the aircraft has left Australia?
MR GUNST: If there was a skerrick of evidence to suggest that this commercial organisation that operates in Africa was engaged by the Minister for Immigration, then there might be something to inquire about, your Honour, but it is patent, in my submission, from all of the material, that, in so far as any sort of security is being arranged, it is being arranged by the carrier at its behest and not by any officer of the Commonwealth, as a matter of fact. I have given your Honour a reference to the cases and I will not take your Honour to them. They are set out on pages 3 and 4 of my outline.
HIS HONOUR: Yes. Is there more then that need be said on these grounds about the manner of removal?
MR GUNST: Manner, your Honour? By aircraft rather than by ship or ‑ ‑ ‑?
HIS HONOUR: No, simply involvement of private personnel and the general area of that kind of complaint made by Ms Mortimer?
MR GUNST: No, your Honour sees from the affidavit of Mr Read that the man will be escorted on a flight from Melbourne to Perth, but that is an internal flight and that person will be an officer within the meaning of the Migration Act, so that the argument does not arise until he gets onto the aircraft and goes inside the door.
HIS HONOUR: I understand.
MR GUNST: Can I then come to the second question, which is the unreasonableness of the RRT decision. The third argument, the one that is raised today, is the unreasonableness of the destination of – well perhaps it is more convenient to deal with the third argument now. My learned friend asked this morning of Mr Read, “Why Somalia?” Well, the answer is it is because it is his country. He is a citizen of Somalia; it is the place where he was born and brought up and your Honour, in fact, asked of my learned friend, is there any material about right or residence in any other country? I would say one ‑ ‑ ‑
HIS HONOUR: I must say at the moment, Mr Gunst, I do not see that as being an argument that need detain us very long, that is, the possibility of another destination. It may be, however, that we need to spend a moment looking at, is it reasonable to send this man back to a country that is in the state of civil unrest that is asserted by the applicant?
MR GUNST: I will, in fact, in dealing with the RRT decision, take your Honour to some of the other evidence about that. Perhaps I will just put that to one side and say that, whilst there was a civil war between 1991 and 1997, it now seems to have been solved to a very large extent, but I will deal with the evidence. But just on the question of alternative country of residence, your Honour, I just say this, that your Honour would be entitled to be a little bit sceptical about some of the applicant’s case in the way it is put. If your Honour goes to the affidavit of Ms Ngo, and go first to exhibit MN3, for example, this is the application for the protection visa. The pages are not paginated, but if your Honour goes about two-thirds of the way through, you will see a page which has got, about a third of the way down the page, “previous addresses”; it is a question and answer form and there are printed boxes and their handwriting. Does your Honour have the one marked ‑ ‑ ‑
HIS HONOUR: Well there are folio numbers on every second page so what is the nearest folio number?
MR GUNST: It is page 43 and 44.
HIS HONOUR: Thank you. Yes.
MR GUNST: Your Honour sees that this man says he lived in Mogadishu from 1987 to 1990, then somewhere else in Mogadishu from 1990 to 1991; another place, Afgoi which on the evidence, is near Mogadishu, 1991 to 1992; Medina and so on, through to 1997 and then over the page, did national service from 1980 to 1981 and from 1981 to 1990 lived in Mogadishu, working in a gold shop; 1990 to 1997 said to be fleeing the civil war. So, your Honour sees a picture there of a man who says, I was born in 1960, I fled Somalia in 1997, but I lived at all times apart from that. If your Honour looks at exhibit R2 - and your Honour sees in some of the material that is put up that he is fluent in Somali, English and Italian; one might ask, why Italian, although I understand at least part of Somalia was an Italian possession at some stage – which is the Interpol telex that I tendered this morning ‑ ‑ ‑
HIS HONOUR: Yes.
MR GUNST: Your Honour will see that this is in fact a telex from Interpol Canberra, but sending on one from Interpol in Rome. There were some fingerprints taken of this man in this country. They were sent to a number of overseas countries for identification ‑ ‑ ‑
HIS HONOUR: You might have fun with all of that in a final trial, Mr Gunst, but I am dealing with order nisi, am I not? What is the point?
MR GUNST: Yes. I just raise it because the man was fingerprinted in Italy in 1991 by the Italian police.
HIS HONOUR: As I say, you might have a ton of fun with that if this went to trial. What is the point?
MR GUNST: That your Honour ought to be sceptical when you come to look at what is said by the applicant to and on your Honour’s behalf.
HIS HONOUR: I can tell you this, Mr Gunst, I am not going to try this action on some assessment of the credibility of the applicant. I have not even had the benefit of hearing from him so it is a bit hard to make adverse findings of ‑ ‑ ‑
MR GUNST: If your Honour pleases. Can I then take your Honour on to the question of the RRT decision and the reasonableness of it, and I have asked your Honour first to look at exhibit MN8 to Ms Ngo’s affidavit.
HIS HONOUR: Yes.
MR GUNST: This is the first instance departmental decision record.
HIS HONOUR: Sorry, MN which?
MR GUNST: MN8.
HIS HONOUR: 8, yes.
MR GUNST: Your Honour sees:
Protection Visa Decision Record.
And if you then go to folio 96, first of all, paragraph 4. Here the departmental delegate is reciting a variety of overseas information:
According to Bill Morton, the Community Aid Abroad Program officer for Somalia, deaths due to power struggles and clan warfare is limited almost entirely to Mogadishu. It is not true of Somalia as a whole. “Away from Mogadishu, there is a remarkable commitment to peace and reconciliation.
Now that is August 1997. The Community Aid Abroad man is saying, apart from Mogadishu, all fairly safe. Go over the page to paragraph 6. In December of 1997:
The United Nations Security Council has welcomed an accord between warring Somali factions that promises to put an end to six years of civil war.
And in paragraph 7:
Mr Husayn Mohammad Aydid, the president of the Somali Republic, and some of the faction leaders who were signatories to the Cairo agreement –
concerning the civil war. Over the page again, paragraph 10:
The Economy –
presumably a magazine –
dated 14 February 1998.
A strange air of normality is settling over Mogadishu, Somalia’s capital. After more than six years of fighting –
and so on –
The guns…..are gone.
Now, that is just some of the evidence. I need then to take your Honour to the solicitor’s submission, because this goes to the question that my learned friend agitated and then I will take your Honour to the RRT transcript.
The solicitor’s submission is exhibit MN13, to the same affidavit. My learned friend said, of course, that the applicant was not represented before the RRT and that is true, but your Honour sees the context of that. In fact he had solicitors acting for him who chose for apparently budgetary reasons not to attend, but they did prepare an extensive and detailed written submission, which is exhibit MN13 and it is dated 24 April 1998. If your Honour goes to page 2 of that submission, for example, paragraph 3 about two-thirds of the way down page 2, where they address the question:
Is the harm or mistreatment (feared by the applicant on return) for reasons of one or more of the five grounds recognised in the Refugees Convention?
The highest it is put by the applicant’s legal advisers, is that one sentence in the second paragraph:
The Applicant fears he will be arrested, imprisoned, possibly tortured and executed if returned to Somalia.
I beg your pardon, it is the next sentence:
This is due to the fact that he is a member of the Shikal tribe.
No elucidation, no elaboration; it is put, no question about that, but not put in any higher way or not backed up by any instances of past misdeeds or misconduct or persecution. It is, in plain terms, a mere assertion, unadorned by any particularisation or elaboration of evidence.
Can I then take your Honour to the RRT transcript, which is exhibit MN14. The RRT, as your Honour knows, is an inquisitorial tribunal. The Minister is not represented. An applicant is entitled to come with whatever witnesses he wishes and an interpreter is provided if need be, and the Tribunal has as its function, the eliciting of the facts from the applicant. My learned friend seems to be suggesting that it is for the Tribunal to put to the applicant how his case can best be embroidered or best constructed ‑ ‑ ‑
HIS HONOUR: No, I understood her case to be that it is for the Tribunal to inquire about the claimed basis. In particular I understood her to say that if the claimed basis is, “I am at risk because I am Shikal”, there should be an inquiry directed to, in effect, “Are you at risk?” Answer “yes” or “no”. If “yes”, “Are you at risk because you are Shikal?” Why are you at risk because you are Shikal?” Those are the three key elements.
MR GUNST: Yes. I do not disagree with that, your Honour.
HIS HONOUR: Then, do I find them here?
MR GUNST: What you find here – and one needs to read the transcript as a whole. One cannot just pick particular sentences. But all of the things that your Honour has just outlined, in my submission, are here in the transcript. First of all, there is inquiry of the various other witnesses who know the applicant, and then the examination of the applicant himself starts at page 10. So, on page 10, it is name:
What clan do you belong to?
…..is that a big clan or a small clan?
Where did it have its land?
What sort of work did you do in Somalia?
When did you last work –
in that capacity? And so on.
Whereabouts in Mogadishu do you live? And then goes through the various other places. This is on page 11. Then in the middle of page 11:
I fled Waberi in 1991.
Where did you go?
INTERPRETER: Medina.
And that’s in Mogadishu as well?
INTERPRETER: Yes.
Was it safer in Medina?
And so on.
Are you married or single?
That is in the middle of page 12. Various other places that he goes to. Then at the middle to the bottom of page 13, about the three shops:
Did you own those shops?
He had a number of houses in - - -
HIS HONOUR: I understand all that. Where do I find, in the transcript, the subject matters, “Are you at risk, and why are you at risk?”
MR GUNST: Yes. The top of page 14, your Honour, where the Tribunal says – at the very top of the page is what happened before the civil war. At line 11, the Tribunal says:
And after the civil war started were you able to keep working as a goldsmith?
The militia came; looted shops; father killed. “When was that?”
INTERPRETER: 1991.
Sister commits suicide.
HIS HONOUR: Well, all that is history. This is what has happened. Where do we find what will happen “if you go back?”
MR GUNST: Yes. Page 15, line 15.
That…..the Shikal, were they involved in the fighting at all?
THE INTERPRETER: Shikal had no involvement in the fighting. They are victims.
“When was this started?---1991.”
Line 30:
what other effects has the war had on you?
INTERPRETER: We didn’t have any settlement and we had – we used to, you know – we were moving to other different places because we didn’t have our own land to live peacefully.
So does that mean that when the fighting got a bit heavy in one place you would move to another place that was, relatively speaking, safer?
INTERPRETER: Yes.
HIS HONOUR: Should I read that as history or should I read it as future?
MR GUNST: That is the history between 1991 and 1997.
HIS HONOUR: Yes. Where do I find, in the transcript, “Are you at risk? Why are you at risk?”
MR GUNST: Perhaps we will go on, your Honour. That is part of the picture. One cannot – I do not say that is the paradigm of it or the acme of it but that is part of the answer to the question.
HIS HONOUR: The point against you may or may not be well based, I have no view at the moment, but the point against you is, again, as I understand it, that the Tribunal does not directly or indirectly front the future question. It looks at the past: “This happened; that happened; the other happened”, but does not confront, “If you go back, are you at risk?” “Why are you at risk?” In effect, “Is it because you are Shikal or simply because there is not good law and order?”
MR GUNST: Can I take your Honour then to the top of page 20 where the Tribunal says:
What do you think would happen to you if you went back to Somalia?
INTERPRETER: Yes, I would be killed.
Why by? Who is after you in Somalia?
INTERPRETER: Yes, the people who already took my possessions and my shops, they are still there. If they saw me hanging round, they would see that I am first seeking for revenge –
and so on. The Tribunal then says:
They haven’t take any action against you –
in the six years –
between 1991 and 1997. Why should I think they would do anything to you if you went back now?
THE INTERPRETER: They would do this if they saw me.
I interpolate here to say, your Honour, that is not a Convention ground at all, if somebody has taken possession of somebody’s goods or chattels and wants to retain possession. At line 22, the Tribunal says:
Is there anything else you want to tell me about your life in Somalia that we haven’t talked about this morning?
And then there is some more questions and answers to the bottom of page 20 about what was done: providing labour. And then another question:
Anything else you want to tell me?
INTERPRETER: No.
There is another witness whose evidence starts at page 22 where the same point arises:
Are you from the Shikal?---Shikal, yes.
Is that a big tribe or a small tribe?---It’s big – are pacific people.
Pacific? What do you mean?---Not having war.
So the Shikal clan was not involved in fighting?
This is page 22, line 37. Answer:
No.
Did everyone know that the Shikal were peaceful?---A peaceful clan.
Now, the test is as I have set it out in the outline of argument, the test to be applied on judicial review of a tribunal decision. It is a well-trodden path. On judicial review of any fact-finding tribunal, one cannot set at nought the very real advantage of seeing and hearing the witnesses that are there before the tribunal and, likewise, should not use what Justice Kirby called “a fine appellate toothcomb trawling through the reasons” in the hope of finding some verbal infelicity that can be catapulted into an area of law in some way. That applies with very great force here.
There is a suggestion raised. There is a full and fair examination of it in a question and answer session that is in the transcript and it is my submission that one cannot say, in any sensible and meaningful way whatsoever, that the Tribunal has erred in law in the way it has conducted itself.
HIS HONOUR: The allegation against you is that it did not consider the right question. What do you say as to that?
MR GUNST: In my submission, it did. Reliance is placed on Abdalla’s Case, and I have said something about that at the bottom of page 7 and the top of page 8. In Abdalla’s Case a tribunal seems to have held that a man who had been persecuted on Convention grounds during the course of a civil war could not thereby be a refugee and the Full Court said, “Well, no, that’s not right”, notwithstanding that it might happen in the course of a civil war. If one is persecuted on a Convention ground, then one is a refugee. Here, you have the reverse. In Abdalla’s Case you had adherence to the deposed president, President Barre??, of Somalia, and persecution upon that ground. That is imputed political opinion.
In this case you have got positive findings of fact by the RRT that there have been no incidents of harassment or persecution of this man or his family in the six years of the civil war from 1991 to 1997.
HIS HONOUR: Is that right?
MR GUNST: Yes, your Honour.
HIS HONOUR: The findings were that he had suffered the various disasters: the loss of his father, the fate of his sister.
MR GUNST: Yes, but none of it for a Convention reason. That is the finding of fact, your Honour. It is at the bottom of page 5 and then over on to page 6 of the Tribunal’s reasons.
HIS HONOUR: Yes, I have it.
MR GUNST: The findings commence in the middle of page 5. It is accepted that he is Somali of the Shikal clan and formerly a goldsmith. It then recites some of the history of Somalia. In the middle of that last paragraph:
He makes no claim that his clan has been targeted or the subject of any persistent harassment. He states his delay leaving Somalia was because he did not have the money at hand to leave and desired to assemble his family before he departed. None of this suggests that the Applicant was targeted or in any way feared that he may be targeted because of his clan.
Now, that is a finding of fact made by a Tribunal that has had the opportunity of reading both the general country information and had the advantage of seeing and hearing the witnesses who gave evidence in the flesh on the day before the Tribunal.
Over the page, your Honour, on page 6 of the reasons, you have that passage from Justice Gummow’s judgment in applicant A and then the findings of fact continue two sentences on:
In this case the Tribunal is satisfied that the Applicant has at times had to flee the civil war or disturbance. The Tribunal is also satisfied that neither the Applicant nor his family were the specific targets of any instances of harassment serious enough to amount to persecution on account of –
I paraphrase, a Convention ground, membership of the clan. Now, that is the test. Has this man been persecuted on the ground of being of the Shikal clan? That was put in the solicitor’s submission. It was clearly in the Tribunal’s mind and a positive finding of fact to that effect is made in that sentence in the Tribunal’s reasons.
The Tribunal finds as a fact, that is that it is not satisfied, that either this man or his family have ever been the specific target of any instance of harassment serious enough to amount to persecution on a Convention ground. There is ample evidence to support that proposition in the evidence that I have taken your Honour to. I cannot say it is so unreasonable that it is liable to be set aside.
The Tribunal goes on - although membership of the Shikal clan is the ground advanced, indeed the Tribunal, very fairly, goes further and looks at ethnic origin or any other Convention reason. One might have a debate about whether the Tribunal had to go further but it has. It has considered all the other Convention grounds and then the Tribunal, in the very next paragraph, does what it is required to do because the past is only a mirror to the future and what the Convention looks to as what is likely to happen in the future but the Tribunal very properly says, “Given that the applicant has not been persecuted in the past” – I am paraphrasing - “I do not think there is a real chance of him being persecuted in the future”.
That is a perfectly unexceptionable conclusion to come to if one has made the findings of fact after hearing all the evidence that the applicant has not been persecuted in the past. For those reasons, your Honour, it is my submission that it certainly cannot be said to be unreasonable that the RRT came to the conclusion that it did and if that is the sole ground that is relied upon it is a ground that is not arguable at all.
HIS HONOUR: Yes.
MR GUNST: Just coming back to that third ground, your Honour, about the unreasonableness of Somalia. Now that we have looked at the evidence of the peace accord and the much more settled condition in Somalia generally and, more recently, in Mogadishu since the December 1997 peace accord, you cannot possibly say on the evidence - my learned friend asserts in the course of her argument of this morning that Somalia is a country in civil war. That is not borne out by the evidence.
In the end, it is a question for your Honour but, even if it was relevant as a matter of law, which I say it is not, it is not made out on the evidence so that even if there is an argument to be made in some case about the appropriateness of a particular destination that someone is to be taken to, this is not the case, because it does not arise on the facts.
Your Honour, at the end of my outline of submissions I have given your Honour reference to the cases that indicate that prerogative relief is discretionary, likewise the application for interlocutory relief and I will not trouble your Honour with the authorities there. I do point to the fact that there has been a considerable delay in this matter. The RRT decision was given in May.
HIS HONOUR: That may be, Mr Gunst. I do not think I am going to be deciding this one on discretionary grounds. Either this man has a case or he does not have a case. If he has a case it should be heard. If he does not have a case it should not be heard.
MR GUNST: Yes.
HIS HONOUR: …..last minute, interesting but not, I think, going to be of great moment.
MR GUNST: Yes. I do not press the delay point, your Honour, but what I do press is that as a matter of law there is no arguable case here. The Minister’s power, duty and responsibility ends when the aircraft crosses Australia’s territorial limits at about 30,000 feet. What happens thereafter is not within the Minister’s jurisdiction and is not, with respect, within the jurisdiction of this Court in respect of officers of the Commonwealth. The Minister’s power is to remove. His duty under the Act is to remove as soon as reasonably practicable and “remove” means remove from Australia. Your Honour, unless there is anything further that your Honour feels I have left unsaid, those are the submissions on behalf of the first respondent.
HIS HONOUR: Yes.
MR GUNST: I should perhaps mention the position of the second respondent. I, in fact, understand the second respondent has not been served but for present purposes it is probable that that does not matter.
HIS HONOUR: Yes.
MR GUNST: In any event, I would expect, once served, the second respondent would indicate in the ordinary way a submission to jurisdiction and nothing further.
HIS HONOUR: Yes, thank you, Mr Gunst. Ms Mortimer, just apropos of that last practical matter, has the Tribunal been served?
MS MORTIMER: I do not think so, your Honour.
HIS HONOUR: I doubt that anything turns on it.
MS MORTIMER: No, no, I believe it has not, your Honour, and that may be – I am sure it is because of the rush and also because of the change from the Tribunal to the individual. I am sure that the individual named has not been served.
HIS HONOUR: But the documents have not even been left with the Tribunal?
MS MORTIMER: No, I am instructed they have not, your Honour.
HIS HONOUR: Yes, well, we will face that with such fortitude as we may bear. It is perhaps undesirable, but there we are.
MS MORTIMER: I concede that, your Honour, and we apologise.
HIS HONOUR: Yes.
MS MORTIMER: Your Honour, briefly, my learned friend urges your Honour to make some findings about the situation, whether peaceful or otherwise, in Somalia. We say that is totally inappropriate to your Honour’s consideration today.
HIS HONOUR: I can understand that submission, but what of the slightly different submission which builds on that, namely that it is not demonstrated that Somalia is in such a state of civil conflict that, if the reasonableness argument would otherwise run, there is a factual base for it?
MS MORTIMER: Your Honour, my submission ‑ ‑ ‑
HIS HONOUR: That is a rather different, I think, slant to the argument.
MS MORTIMER: Yes. My submission is that it is demonstrated to the extent that your Honour needs to be satisfied and my submission is your Honour need go no further than the letter from Amnesty International that is addressed to the Minister and is exhibited to Ms Graydon’s affidavit.
HIS HONOUR: Yes, I have read that.
MS MORTIMER: That is a letter that expresses the concern of an organisation with - your Honour is aware of the kind of reputation Amnesty has internationally and it specifically says that:
Amnesty International continues to oppose the forcible return of all Somali asylum‑seekers to areas of the country which have not been described as “recovery” areas in the UN categorisation, as opposed to other areas, including Mogadishu, which are in “crisis” or “transition”, where the human rights situation remains grave and the areas are unsafe for any return.
Now, that is the opinion of a well‑respected human rights organisation that deals specifically with these kinds of issues. That, in my submission, is sufficient evidence for your Honour to ‑ ‑ ‑
HIS HONOUR: - - - to show a serious case for inquiry on that issue.
MS MORTIMER: Yes, yes, and, of course, it will be an unenviable task for whatever court, if a court needs to, to find as facts about the situation of Somalia. It is not one that need distract your Honour today.
HIS HONOUR: Yes.
MS MORTIMER: Your Honour, the second point is, my learned friend made some submissions about the involvement of officers of the Department of Immigration in the transportation of the applicant. Your Honour, exhibit JLR13 to Mr Read’s affidavit is the travel arrangements for the last time this applicant was attempted to be removed and that demonstrates that people accompanying the applicant accompanied him from Melbourne.
HIS HONOUR: Well, in the sense of travelled on the aircraft.
MS MORTIMER: Yes, your Honour, and the applicant’s own affidavit filed in this proceeding demonstrates that the hand-over - and we say that there is ample evidence for your Honour to find that there is, in fact, a hand‑over - occurred at the bottom of the steps of the aircraft. Now, there has been no evidence put to contradict that.
Your Honour ought to infer that if the officers were acting properly, that is their usual practice and that is how they do it so that there is a hand‑over and, in fact, what the applicant’s affidavit says is that he is first introduced to the person who is going to escort him in the airline lounge and that that person goes with him as do the departmental officers to the plane.
At the bottom of the steps the departmental officers stop. The belt is taken off and he goes up the steps with the people who are escorting him on the plane and it is then, when he becomes unco‑operative, he is threatened by those people escorting him that they will handcuff him. So that, in my submission, there is a clear change and there is no other word for it, your Honour, a clear change in the custody of this person and your Honour ought to infer that, from the applicant’s own evidence - my submission is the strongest on this - that he was under the distinct impression that he had no choice; that he could protest by sitting down on the steps. He was told he would be carried on.
HIS HONOUR: Well, do you dispute the power of, at least, officers of the Department to carry him aboard?
MS MORTIMER: No, your Honour, we do not and all this submission, your Honour, hinges on - and this is, in my submission, one of the questions that needs to be decided - when the responsibility ceases. Now, my learned friend says, “We close the door and the responsibility of the Minister ceases” and he then goes on to say - to submit to your Honour that the removal power is exhausted at the edge of the territorial sea. He cites for that, your Honour, Ferrando. After Ferrando came the decision of Znaty and, in my submission, that part of Ferrando was brought into some question in Znaty and I would ‑ ‑ ‑
HIS HONOUR: Just step back a bit. What is the essence of the contention you are making now, that officers of the Department should accompany him on the flight and as the aircraft passes the 12‑mile limit, notionally hand over.
MS MORTIMER: No, your Honour.
HIS HONOUR: What then is the contention you are making?
MS MORTIMER: Our contention is that the process of removal includes delivery to a destination so that it is not complete until the ‑ ‑ ‑
HIS HONOUR: Therefore, do you say the Department must take him to his destination?
MS MORTIMER: If he is to be restrained in custody, it is to be done by officers of the Department because they are the only ones authorised to do it. Now, it is conceivable, your Honour, that the Government may see fit to pass amendments to the Migration Act specifically to authorise persons other than officers of the Commonwealth to detain people like the applicant and to use reasonable force.
HIS HONOUR: But the factual base on which this case proceeds is that the Department neither threatens nor intends to do more than get him aboard the aircraft and what happens thereafter is something that they will do nothing about. That is the factual base, at least as I understand it. If I am wrong do please correct me.
MS MORTIMER: No, your Honour, that is correct but the factual basis – the analysis of the factual basis depends on which version of the law the Court accepts.
HIS HONOUR: Why? The Department’s intended conduct, again as I presently understand it, is that they will quit themselves of responsibility for this man as the aircraft door closes. Now, perhaps they may have power to do more than that but the question is do they have power to do that? If they do not, then perhaps relief should go, but if they have power to do more than that, in a sense so what?
MS MORTIMER: Your Honour, my submission is that at the heart of what the Department says or the Minister’s witnesses say is the proposition that removal from Australia means, “We deliver you to the door of the plane and that is all we have to do”.
HIS HONOUR: Well, that is all they are threatening or intending to do.
MS MORTIMER: Yes. Our submission is that that is not removal from Australia and that the authorities are clear that removal from Australia, like deportation from Australia, involves delivery to a place. It is a process and it is not complete – this is our proposition of law, your Honour – it is not complete until the person is delivered to the destination. Regardless of who chooses the destination, there is a delivery to the destination. Now, on that proposition we are at odds. My learned friend says, perhaps in the alternative, our responsibility ends when we close the door. We hand it over to the captain. He then relies on Ferrando and says the removal power is exhausted at the limit of the territorial sea.
HIS HONOUR: Well, assume he is wrong about that, so what? What follows from that error?
MS MORTIMER: What follows from that error, your Honour, is that if there is to be – that the removal continues until the applicant reaches his destination.
HIS HONOUR: Assume that to be so and assume that the Department wants absolutely nothing whatever to do with it once the aircraft door is shut, what follows?
MS MORTIMER: The Department, your Honour, cannot abdicate that responsibility. That is our submission. Unless it ‑ ‑ ‑
HIS HONOUR: What then is the relief you seek, something in the nature of mandamus? I think not.
MS MORTIMER: We say, your Honour, that the Department has abdicated by handing over that latter part of the process of removal to first the carrier and then to whoever the carrier chooses to employ. Now, that is why we seek prohibition to restrain that manner of removal.
HIS HONOUR: It is complicated by air travel, is it not? Put it into ship‑bound travel. Assume this man were put aboard the vessel, the vessel cast off and sailed off through the heads. Does the Department have to have an officer aboard that vessel until she passes the 12‑mile limit?
MS MORTIMER: Your Honour, is that on the basis that the person is in some kind of custody on the ship?
HIS HONOUR: The person is in the restraint that is presented by the fact that that person will do serious harm to themselves if they go over the rail.
MS MORTIMER: Then the answer is no, your Honour.
HIS HONOUR: The Department does not need somebody aboard?
MS MORTIMER: No.
HIS HONOUR: What is different with the aircraft? The person will do serious harm to themselves if they try to get off the aircraft.
MS MORTIMER: Yes, that is so, your Honour, but this is where the distinction between keeping someone in custody in order to ensure their delivery to a particular place and the physical constraints of the way that they are removed diverge.
HIS HONOUR: Look, I travel, say, to Germany. I travel on an ordinary aircraft via Singapore. I have no permission to go the land side of the Singapore Airport terminal. I am stuck in the transit lounge for what seems an interminable time. It may seem like custody, but what is the difference between that, the fate of the ordinary passenger, and the fate of someone who is being removed if that person is removed with travel documents that permit that person only to cross a frontier at a particular destination. They may go via one, two, three ports, but they are stuck in the joys of the transit lounge, are they not?
MS MORTIMER: The first difference, your Honour, is that your Honour would be there of his own free will.
HIS HONOUR: Yes.
MS MORTIMER: This man is not.
HIS HONOUR: Yes.
MS MORTIMER: The second difference is that your Honour ought to infer from the evidence so far that this man would not be free to surrender himself to the immigration authorities at Singapore and say, “I want to make a claim for refugee status”. Your Honour ought to infer that if he tried to escape, because on the evidence before your Honour he wants to go anywhere rather than Somalia, that he would be restrained from doing so by the person who is accompanying him, let alone any Singapore authorities, but he would be restrained by the person accompanying him.
In your Honour’s hypothetical situation, your Honour would be subject to none of those restraints. There is a difference and the nature of the difference depends, in my submission, on how much it is tested and, because this man has not actually been removed we cannot put before your Honour precisely what happens to this man when he is in transit in Johannesburg or transit in Nairobi. Your Honour has seen some evidence about what has happened to other people. That has been objected to.
HIS HONOUR: Yes, I cannot take account of that.
MS MORTIMER: So we cannot put to your Honour what precisely will happen, but we can put to your Honour the kinds of differences between this man’s situation, even in a transit lounge, and that of a willing fare paying passenger and those differences, your Honour, in my submission, relate fundamentally to the nature of his liberty.
HIS HONOUR: We come back to the factual base. The Department says, “We are shot of this man the moment the door shuts.” There is no other threatened or intended action by the Department. Why are you entitled to relief against the Department?
MS MORTIMER: That is where we come back, your Honour, to this difference in law. If we are right and the removal continues, then we are entitled to relief against the Minister because it is the Minister’s removal until he reaches Mogadishu. Now, that removal is implemented by transportation by a carrier who is forced under the Migration Act to transport but it is, on our submissions about the law, it is the Minister’s removal. He is the person directing the carrier to actually physically transport the person but it is, on our submissions, the Minister’s removal until that person reaches Mogadishu. We are at issue about that. That, in itself, in my submissions, is a serious question. There is no authority whatsoever to guide your Honour on that.
HIS HONOUR: On that submission, what then is the distinction between deportation and removal?
MS MORTIMER: Our submission is that the authorities at present do suggest that deportation means deportation to a place.
HIS HONOUR: Yes.
MS MORTIMER: If that is so, then our submission is that the words “removal from Australia” need to be read in the same way.
HIS HONOUR: How? How can they be read the same way? They are different words. That is a captious answer but beneath it there is a substantive point. Removed from Australia is different from deport to Ruritania.
MS MORTIMER: I will just check whether it is deportation to or deportation from Australia. It may be that it is only the verb that is different, your Honour. The submission though, your Honour, is that the concept and the basis of the concept is the same. The nation has a right to exclude. It has a right to take people out of its territory. Now this Act makes a distinction between deportation and removal in terms of the kinds of people to which they apply.
HIS HONOUR: There is, on a quick look, nothing in the deportation provisions about deportation to. There is an order for deportation of someone.
MS MORTIMER: Yes. Your Honour, if your Honour looks at section 5 of the Act, deportation is defined as meaning “deportation from Australia”.
HIS HONOUR: Yes, thank you.
MS MORTIMER: Your Honour, in relation to the Tribunal’s decision, your Honour put to my learned friend a summary of the way that our case is put and your Honour put to my friend that the Tribunal does not confront the question of the future, what is going to happen to you when you go back and, if you are going to be harmed, on what basis?
Our submission in relation to the Tribunal is slightly wider than that. It is that, certainly, the Tribunal does not address that. It does not address it in the past either. What it does, in our submission, is engage through the hearing in an historical narrative and it is not an inquiry into the nature of the application, the nature of the claims which have been articulated. There is no analysis and no questioning of how the Tribunal ought to reach that correct or preferable decision.
It asks for a historical narrative. The transcript is almost completely devoid of why, what is the basis for this? How do you say this is going to happen? Those kinds of questions are not present. What your Honour finds is when did this happen, then what happened and the starkest example, your Honour, is that page – I think it is page 14 of the transcript where the Tribunal goes through with the applicant the sequence of where he moved to over a number of – an astonishing number of moves from one place to another.
Not once is the applicant asked, “Why did you move? Why are you moving around the country so much? What is the basis for it? If you cannot live safely, why cannot you live safely?” Those are the kinds of inquiries that we say ought to have been made and were not. If your Honour pleases, those are my submissions.
HIS HONOUR: Yes, thank you. Yes, I would propose to consider my decision in this matter. I would hope to be in a position to give judgment on Monday next. Subject to anything that counsel may say, it would seem in that event desirable to continue the injunction until 4 pm Monday next or further order. Do counsel wish to be heard on whether or on what terms such an extension should be made. Mr Gunst, you do not?
MR GUNST: No.
HIS HONOUR: Ms Mortimer?
MS MORTIMER: No, I do not.
HIS HONOUR: Is 4 pm Monday a suitable time? If I am not in a position to give judgment by that time, because there are a few things that have to happen between now and then, might I ask whether counsel would be good enough to consider that if a message comes that I am in difficulty about giving reasons by that time or a decision, whether it may not be possible to file minutes of a consent order further extending the injunction without need for the parties to incur the time and trouble and expense of attending Court. If, of course, a party desires me to attend, then so be it. I will have a hearing on Monday.
MR GUNST: Not necessary on our part, your Honour.
MS MORTIMER: No, we are content with that, your Honour.
HIS HONOUR: It may be then that, depending on press of work in the balance of this week, that you may get a message. You will understand me if I say I hope you do not.
I will adjourn further hearing of the matter until 16 November 1998 at 10.30.
I will extend the injunction earlier granted until 4 pm 16 November 1998 or further order.
I will reserve costs and certify.
MR GUNST: Your Honour was adjourning the hearing to 10.30 am in Melbourne?
HIS HONOUR: In Melbourne, yes. Yes. Thank you, Mr Gunst, but yes, in Melbourne.
MR GUNST: Thank you, your Honour.
HIS HONOUR: Should make for an entertaining sittings, this sittings, will it not? I will adjourn.
AT 3.34 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 16 NOVEMBER 1998
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Standing
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