Traljesic v Bosnia and Herzegovina & Anor

[2017] HCATrans 213

[2017] HCATrans 213

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M60 of 2017

B e t w e e n -

RASIM TRALJESIC

Applicant

and

BOSNIA AND HERZEGOVINA

First Respondent

FRANK HOLZER

Second Respondent

Application for special leave to appeal

BELL J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 20 OCTOBER 2017, AT 11.12 AM

Copyright in the High Court of Australia

MS L.G. DE FERRARI:   If the Court pleases, I appear with MR J.P.W. MALONEY for the applicant.  (instructed by Greg Thomas, Barrister and Solicitor)

MR C.J. HORAN, QC:   May it please the Court, I appear with MS K.A. O’GORMAN for the first respondent.  (instructed by the Australian Government Solicitor)

BELL J:   Some affidavits have been filed this morning, Ms de Ferrari.  Can we be assisted by the present position in the light of that material?  An affidavit was filed by Ms Sutherland annexing a letter from Mr Thomas.  Has there been any response to that?

MS DE FERRARI:   Your Honour, I think the chronology goes that about four o’clock yesterday afternoon, the first respondent filed an affidavit sworn by Ms Robyn Curnow.

NETTLE J:   That is the one that says, “We are told by Herzegovina that time served will count”?

MS DE FERRARI:   Yes, that is the one.  When we made inquiries as to what does this material go to, the position, as I understood it, was we want to have all cards on the table in front of the Full Court.  That affidavit of Ms Curnow, as your Honours will have seen, is about correspondence that my instructor tried to direct to the Attorney‑General and then there are responses by AGS.  So, in a sense, if these are full cards on the table then we thought that the entirety of the correspondence should be before the Court.  That is the second affidavit which also says that we still have not received any response to the second letter sent to Mr Faris as well.

Now, we do not object to the materials being before the Court but the relevance to today’s proceedings is, I think, something that probably my learned friend should address your Honours on, given that it is his affidavit.

BELL J:   Mr Horan.

MR HORAN:   We do not say they are directly relevant to the issues arising from the Full Court’s decision.  They have been put before the Court simply to ensure that the Full Court hearing of the special leave application is apprised of those developments.  They may have some ‑ ‑ ‑

BELL J:   In practical terms, Mr Horan, what ‑ ‑ ‑

MR HORAN:   In practical terms they may have some potential future relevance in that the period of extradition detention under the Act will soon

reach the time remaining to be served under the sentence in Bosnia.  I think the relevant date is 11 November.

BELL J:   Yes.

MR HORAN:   That has no immediate effect; it may have an effect on the future progress of the extradition request.  It also has a less direct effect on the issue of whether the applicant would be returned to prison in Bosnia if he were to return there, which goes to the question raised on the special leave application concerning section 7(c) of the Act.  We do not say that that makes those issues moot – certainly not yet.

BELL J:   No.

MR HORAN:   But we did not want that to emerge down the track and for the Bench hearing the special leave application to be taken by surprise by that.

BELL J:   Yes.  Thank you, Mr Horan.  Yes, Ms de Ferrari.

MS DE FERRARI:   Your Honours, the starting point of what I wanted to address this Court in terms of the special leave application is that the task of the Full Court was in two parts.  The first one was to determine whether the applicant is eligible for surrender within the meaning of section 19(2) of the Act.  The second part, if the determination is or should have been that he was eligible for surrender, it had to include in its judgment on the appeal a statement to that effect specifying the offence or offences.

That emerges from section 21 of the Act, which is set out at application book 103 and 104, in particular subsection (6).  Your Honours will see that subsection 6 starts by identifying effectively every court under section 21.  Under paragraph (a) that is the Federal Court at first instance.  Under paragraph (b) it is the Full Court, and under paragraph (c) it is this Court.  It then makes provision in the exact same terms for all those courts in the remainder of subsection (6). 

I note at paragraph (d) there is the “subject to section 21A”, which is a relatively new provision under the Act that allows every court to allow new evidence from what was admitted at the section 19 stage.  But importantly, if your Honours go to paragraph (g):

if the court to which the application or appeal is made –

So that is every court:

determines that the person is eligible for surrender, within the meaning of subsection 19(2) . . . the court shall include in its judgment –

that statement.  So these two tasks – that is, determining as at the date of the hearing before that particular court whether the applicant is eligible for surrender within the meaning of subsection 19(2), to which I will take your Honours in a minute – that task and the task of putting that determination in the judgment, the Full Court did neither of those two things.

Now, in terms of the second thing – that is, including in the judgment a statement to that effect – that is plain and easy to see.  If your Honours go to application book page 77, at paragraph 74, their Honours say that – we are not going to do it.  That obviously feeds into the problems with section 22 because section 22 is predicated on there being that determination by the final court that dealt with the section 21 proceeding.  So there is no determination of eligible offences by the final court, which at the moment is the Full Court.  So that is plain to see.

In terms of the failure to determine as at the time when the matter was before the Full Court the question of whether my client was eligible for surrender, that is a question from section 19(2).  Section 19 is set out at application book 97 and 98.  Your Honours will see under subsection (2) it starts by saying:

the person is only eligible for surrender . . . if ‑

and then there are a number of matters.  Precisely the same matters arise for every section 21 court.  The last matter in paragraph (d) is:

the person does not satisfy the magistrate or Judge that there are substantial grounds for believing –

Precisely the same question arose in front of the primary judge, her Honour Justice Mortimer.  We said below precisely the same question arose in front of the Full Court.  Bosnia actually accepts that - accepts that that is the position.  The Full Court had to determine that question as at November 2016.  The present tense of the question is also clear when one looks at the relevant extradition objection, which was the only extradition objection at issue all the way through.  That is set out at application book page 95.  Your Honours will see paragraph (c):

on surrender to the extradition country –

So necessarily one is looking at what will happen in the future.  The Full Court should have done the task of looking, in November 2016 when the hearing happened, what would be the position on surrender – that is, at some future time, hopefully not too far in the future – about what would happen to the person in Bosnia - my client in Bosnia.  The court did not do that.

What the court did – and that is apparent from paragraphs 60 and 70 of the judgment, your Honours – is not find any error with the primary judge’s analysis that as things stood in 2007 you could not have said that in 2007 what happened to my client was because of a condoning because it might have happened because of lack of resources from Bosnia. 

What happened in 2007, your Honours, is only relevant factually because the primary judge found that the same would happen in the future.  So what will happen in the future will be that he will be again beaten by prisoners by reason of his political opinion.  The question is:  is the satisfaction of the test – that is that it is a political objection - as at this time?

As at this time, that is, relevantly for the Full Court, in November 2016 Bosnia had known since 2015, when the hearing before the section 19 magistrate happened, that this was the issue, what will happen to him on return.  Bosnia had known what had happened to him in the past.  Bosnia tried to put evidence to say well, prison authorities are now actually really, really concerned about human rights.  That evidence was given no weight by the primary judge and that was not disturbed by the Full Court.

So, with the knowledge that this is going to happen to him again on surrender – that is at some reasonably future time - Bosnia’s position is it is going to do nothing.  It is simply going to do nothing to prevent what the primary judge found is going to happen to him, that is, he was going to be again subject to violence by non‑state actors under the control of Bosnia by a particular reason that is prescribed by the section.

EDELMAN J:   Ms de Ferrari, could I just ask you about page 19 of the application book, paragraph 36, the second substantive paragraph where the applicant’s evidence is recounted by the primary judge.  The matters that you have mentioned are described there, but the applicant’s evidence also was that the attackers were connected to the prison authorities.

MS DE FERRARI:   Yes.

EDELMAN J:   There does not seem to be any explanation about that even though that evidence seems to be accepted.  What do you understand that to mean?

MS DE FERRARI:   That what had transpired in the record at section 19, which was all in front of the primary judge and also the Full Court, was that on one occasion when he had tried to complain about what happened he saw the attacker effectively talking to the prison guards.  That was his basis for his evidence that there was actually a connection between the attackers and the prison authorities.

Your Honours, I think we said in the written submissions that everything that is extracted there, which was accepted by her Honour, there were full references to every single part of the transcript from where the evidence emerged.  There was no dispute ever made that everything that was said there was an accurate statement having regard to the transcript and what occurred.  So the findings are undisputed. 

If your Honours go to paragraphs 60 and 70 - I said that paragraphs 60 and 70 of the Full Court’s reasons show that it considered the question as at 2007.  Paragraph 60 is at page 72.  Your Honours will see, starting from about point 9, it says what the primary judge found.  It talks about the prison authorities knew back then – lack of protection provided back then.  It is all about in the past.  Then, if your Honours turn the page, the final complete sentence:

As the primary judge correctly pointed out, the reaction of the authorities (or State) –

Now, that can only be about the past:

could have been attributed to a range of matters –

et cetera.  Again, at paragraph 70, application book page 76:

Ultimately, the question whether or not particular conduct involving non‑State actors . . . falls within s 7(c) is necessarily a question of fact and degree.

We have the position, your Honours, that the Federal Court and the Full Federal Court accept that conduct by non‑state actors is capable of being within the section, so it is capable of satisfying the extradition objection.  Then their Honours go on:

However, in our view, knowledge of the conduct and the reasons for it without more is not a sufficient nexus.  Having regard to the evidence before the primary judge, the reason why the prison authorities in Bosnia and Herzegovina withheld protection –

in the past:

is unknown.

The question is why are they going do nothing and why are they not even going to attempt to do anything when he goes back, when the findings of the primary judge are that the exact same thing will happen?

EDELMAN J:   Your basic point really becomes what more could any applicant ever do to at least raise an inference that there was the prohibited purpose involved when this applicant has given evidence, which is accepted, that prison authorities did nothing to protect him, they did nothing to find the perpetrators, they knew about it and there was some connection with the attackers?

MS DE FERRARI:   Yes, your Honour.  There is nothing more that he can do.  It is all in the knowledge of Bosnia, and Bosnia, for particular forensic reasons, chose to not put any evidence – certainly not any evidence that survived – in front of the magistrate.  Because of what happened in front of the magistrate, there was no evidence before the primary judge.

NETTLE J:   On what basis was that evidence about attention to human rights rejected?

MS DE FERRARI:   I am sorry, your Honour.

NETTLE J:   You mentioned before that Bosnia sought to file affidavits and rely on them as to its improved attitude towards the protection of human rights.  On what basis was that evidence rejected?

MS DE FERRARI:   Yes, your Honour.  It was not actually affidavits.  That would not have been a problem.  What Bosnia sought to do is to get the documents – there were three letters by Bosnian personnel – before the section 19 magistrate by reason of the certification provision under section 19. 

NETTLE J:   Yes, I see.

MS DE FERRARI:   We argued in front of her Honour Justice Mortimer that might have been sufficient to do it that way in front of the section 19 magistrate, but there were two Full Federal Court authorities that said when you come to section 21 the Evidence Act applies.  We submitted to Justice Mortimer it is clear that those letters that went in by reason of the certification provision are only intended to be relied upon for hearsay purposes, therefore they should be out.

Her Honour did not accept that argument but said that by reason of how it was done and what was done and that the letters were obviously and clearly self‑serving ‑ there was a finding to that effect by her Honour – they should be given no real weight, which seems to have become no weight, clearly.

BELL J:   When one turns to the Full Court’s discussion of that issue at application book 77, in paragraph 73 their Honours note that since the three letters were not given what they described as “any real weight”, the primary judge was not satisfied that the situation had changed.

MS DE FERRARI:   Yes.

BELL J:   Their Honours then go on to point out even if they were to have allowed that second ground respecting the admission of the letters it would not have affected the result because their Honours are there looking prospectively and accepting the point that you raise, Ms de Ferrari, namely, that the findings are that the applicant would be subjected to the same treatment.

MS DE FERRARI:   Exactly, your Honour.

BELL J:   The matter I am raising with you is as a matter of substance it might be argued as Bosnia argues that the Full Court was turning its mind to the question of the position in Bosnia now and not as it was in 2007 and accepting what on one view of the somewhat damning findings that Justice Mortimer made.

MS DE FERRARI:   Your Honour, the Full Court accepted all the findings about what would happen to him if he is returned, but the question was, in terms of the nexus, both the primary judge and the Full Court just looked at the fact that my client had not been able to establish that back in 2007 this may have been, by reason of Bosnia at the time still coming out not so long from the Bosnian war, by reason of Bosnia just simply not having enough resources.  But that question about why Bosnia did nothing in 2007 says absolutely nothing about why Bosnia, in 2016 or now in 2017, would do nothing – and by “nothing” I mean not even attempt to prevent that from reoccurring on surrender.

EDELMAN J:   Your point is basically if there is a basis to draw an inference in 2007 against you there would not be that basis to draw an inference in 2016.

MS DE FERRARI:   Absolutely.  I think we have said in the written submission what more can we do?  We had the contest.  The only issue in front of the section 19 magistrate – the hearing went for four days – that

was the sole contest:  what would happen to him on surrender?  What else could we do?  Unless there are any other questions, your Honours.

BELL J:   Yes, thank you. 

MR HORAN:   If the Court pleases.  Just before turning to the section 7(c) point, there were two other points raised by my learned friend.  The first is the making of a declaration or determination under section 21(6)(g).  That is a matter that is not within the scope of the appeal.

BELL J:   It is not within the grounds.

MR HORAN:   It is raised in a separate proceeding which is against a different party, the Commonwealth Attorney‑General, but it does not strictly arise directly from the Full Court’s judgment.

BELL J:   There would need to be an amendment of the grounds, yes.

MR HORAN:   Yes.  In effect, it is a rather self‑defeating – perhaps “self‑defeating” is the wrong word – but as soon as special leave were granted the ground would evaporate because this Court would become the final Court under section 21.

BELL J:   Yes.

MR HORAN:   So the absence of a declaration by the Full Court of the Federal Court would become academic.  But in any event it is not currently within the scope of the application.  In relation to the nature of the appeal and whether the Full Court ‑ ‑ ‑

EDELMAN J:   Do you accept that the point is right, though?

MR HORAN:   No.  It has not been raised.  It is raised in the other proceeding against the Commonwealth Attorney in the context of whether or not the power to make a surrender determination under section 22 is or will be enlivened.

EDELMAN J:   Yes, but you say the Full Court was exercising strictly appellate jurisdiction not original jurisdiction under section 21?

MR HORAN:   That was the second point I was going to raise, because it is not true to say that the question that arises at each of these levels is the same.  The first level is the section 19 eligibility level before a section 19 magistrate or judge.  The second level is the section 21(1) review of that determination, and that, as this Court established in Pasini, is a review which is directed to determining whether the magistrate’s determination is right or wrong.

Then there is another shift in character to the section 21(3) appeal to the Full Court, which we say is an appeal by way of rehearing.  On accepted authorities, such an appeal would require the demonstration of legal, factual or discretionary error.  Finally, there is the appeal to this Court which in fact does not strictly arise directly from the Extradition Act but comes from section 73 of the Constitution and section 33 of the Federal Court of Australia Act, subject to a grant of special leave.  Although that is recognised in section 21, the source of that jurisdiction does not come from section 21.  Accepted authority is that the appeal to this Court, once special leave is granted, is that it is not an appeal in the strict sense.

So at each level there are slightly different frameworks.  They are all directed to the question of eligibility for surrender, but importantly they are directed to that question on the material that was originally before the section 19 magistrate, subject only to the power to allow additional evidence under section 21A.  So it is not true to simply say that there is a standing in the shoes at each level of the section 21(1) judge – in this case, Justice Mortimer – and then the Full Court and then this Court all doing exactly the same thing.

The short answer to your Honour Justice Edelman’s point is that it was sufficient for the Full Court to state that there was no need to remake the determination under section 21(6)(g).  It simply recognised that that had been made by order of her Honour Justice Mortimer at first instance.  We say that there is nothing wrong with that.

BELL J:   Is that a submission that the court was not required to include in its judgment on the appeal a statement to that effect specifying the offence or offences under 21(6)(g)?

MR HORAN:   Yes – well, certainly if it did not differ from the conclusion below.

BELL J:   All right.

MR HORAN:   So that if there was no error in that determination, it was simply by not reversing that order it is taken to have remained in place.  The central issue raised by the application for leave in relation to section 7(c) is, in some senses, relatively specific or narrow.  The question is whether section 7(c), read together with section 19(2)(d), poses the question were there substantial grounds for believing that the applicant may be punished by reason of his political opinions if surrendered to Bosnia?

It was common ground before the Full Court, and perhaps even before the first instance judge, that section 7(c) requires that the punishment in question must be caused or condoned by the requesting state.  In other words, it is not sufficient simply to show that the applicant could experience mistreatment from other prisoners by reason of his political opinions.

EDELMAN J:   Do you accept that caused or condoned could be proved by inference rather than by direct evidence?

MR HORAN:   Yes.

EDELMAN J:   What more evidence could the applicant then have put on to prove it by inference?

MR HORAN:   That becomes a question of fact.  The applicant points to what is called the evidentiary lacuna, saying that if anyone should be required to bear the burden of proof in relation to that lacuna, it is the requesting state because they are matters within the knowledge of the requesting state.

EDELMAN J:   Put aside evidentiary onuses and so on for the moment, what more could any applicant ever prove than what this applicant has proved?

MR HORAN:   In this case what the evidence showed was that the applicant had experienced mistreatment at the hands of his fellow prisoners.  I think that the primary judge referred to an attitude of disdain by prison authorities.  But the reasons why the prison authorities, or other authorities of the state, did not or were unable to prevent that mistreatment from occurring could be for a range of reasons other than the prescribed reasons under section 7(c).

BELL J:   But her Honour did accept that the prison authorities knew not only of the beatings but knew the reason for the beatings which was the applicant’s political opinions.

MR HORAN:   Yes.

BELL J:   At a point if persons in authority know that a person under their control is being physically beaten, and the reason for that beating is to do with that person’s political opinions and the authorities do not do anything about it, at a point does one draw the inference that their motivation is supportive of the reason?

MR HORAN:   One might.  We do not contend that the inference is never open that the inaction can amount to condoning or being complicit in the reasons.  But the principle that was applied by both the primary judge and the Full Court is correct, that, to be punishment within section 7(c) the applicant must be at risk of being punished by the state.

EDELMAN J:   But in what circumstances other than those of this case would you ever draw that inference?  What more would need to be shown by an applicant for the inference to be drawn, bearing in mind also the evidence of the applicant that there was some connection between the attackers and the prison authorities?  Would the attacker need a letter from Bosnia saying, “Here are the reasons why we condoned the activity”?

MR HORAN:   There may in some cases be direct or indirect evidence of the motive of prison authorities in turning their backs on mistreatment of prisoners who were subjected to that mistreatment for a particular reason such as political opinion, rather than an indiscriminate inability or unwillingness to offer protection to prisoners in general against mistreatment in prison.  That distinction is analogous to the situation that presented itself in Snedden, although the context is slightly different.

EDELMAN J:   Except that the mistreatment here is a mistreatment for the prohibited purpose.

MR HORAN:   That is correct, but it may be that the state is simply unable or unwilling to provide sufficient protection to eliminate that risk or to address that risk, not just in relation to persons who are subjected to mistreatment for their political opinions but for any prisoner who is subjected to mistreatment, whether that be for personal reasons or other reasons. 

So in that sense it is like the mitigating factor in Snedden which applied in relation to service in the Croatian Armed Forces, but the reasons why someone may not have such service could be manifold.  In other words, the ineligibility for that mitigating factor, the court found, would apply to anybody who had not performed the requisite war service, whether or not they had not done so for political reasons or because they sympathised with different political views.

In this case that is really, as a question of fact - accepting that the principle to be applied was, on the evidence, should it be found or inferred that the state condoned or was complicit in not just the conduct but the reasons for the conduct, and as a matter of fact the primary judge found that there was insufficient evidence to draw that inference.

Your Honour poses the question that the applicant poses in the application of how is this evidentiary lacuna to be filled?  To put that another way, as it has been put this morning, what more could the applicant do?  Be that as it may, that is a question really for the Full Court.  At some point, it may become a situation where an error arises because it simply was not open to the primary judge or the Full Court on the evidence not to draw that inference. 

As your Honour has pointed out, that is not strictly a question of onus; it is simply a question of looking at the material, it was not open to reach any other conclusion than that the state did condone, tolerate, acquiesce or was otherwise complicit in not just this conduct occurring but was complicit in the reasons for it occurring.

EDELMAN J:   Would Jones v Dunkel apply in these circumstances, in a statutory context?

MR HORAN:   In one sense it should not because the record is formed before the section 19 magistrate performing an administrative function.  It is clear that, whatever the position might be when the matter comes to the Federal Court under section 21, the rules of evidence do not apply when the matter is before the section 19 magistrate.

The second point is that, while it is true that the evidence was not ultimately given weight, Bosnia did put on some evidence to show changed circumstances in the relevant prison in Bihac.  It is not true to say that the requesting state simply relied on onus and put in no material and took a position that it was not necessary to address the position that would prevail in the event that the applicant was surrendered.

That material was put in the form of those three letters, and the primary judge dealt with those, I think, at paragraphs 123 and following, in answer to your Honour Justice Nettle’s question, but they were ultimately given no weight, but that is not to say that there was no evidence sought to be put on by Bosnia to meet that particular issue.

It was treated as predominantly directed to the question of whether the circumstances had changed but it was also capable of dealing with this issue of whether or not the state was tacitly supporting the mistreatment for the prescribed reason of political opinion by simply standing by and allowing such mistreatment to occur.

We would say that the core of the judgment below is to be found at paragraph 131 of Justice Mortimer’s judgment, at application book 43, and paragraph 70 of the Full Court’s judgment at application book 76.  They really encapsulate that point which is a remote analogy with Snedden in that it is a case where it was not evident that the reason why the state and the prison authorities were unable or unwilling to prevent the mistreatment from occurring to the applicant, whether that be in 2007 or at the date of the

relevant determination, was unknown.  It could be for a range of reasons that were not connected to the political opinions of the person subjected to the mistreatment.

As the plurality said in Snedden, at paragraphs 75 and 77, in that case there may be many reasons which explain a person’s service or refusal to serve in a particular force and that anyone who did not serve in the Croatian Forces was ineligible for the mitigating factor, irrespective of their personal motives, circumstances or political opinion.

BELL J:   In some respects Snedden is a long way from this.

MR HORAN:   It is, because, as the applicant points out, it dealt directly with state conduct of the application of – the conduct of the courts in sentencing offenders. 

BELL J:   Yes.

MR HORAN:   There was a separate point that was raised about whether or not the application of a mitigating factor even involved punishment in a relevant sense.  The point that was made about the inability to ascribe to the state the relevant motive applies here because, accepting as the applicant does, that it is necessary to ascribe the punishment within section 7(c) to the state, it then becomes necessary to determine whether or not both the conduct and the prohibited reason can be attributed to the state.  If there is insufficient evidence of that motive, then it is open to the magistrate or judge not to be satisfied that there are sufficient grounds for believing that an extradition objection arises.  I think that is all I need to say on the special leave point.  If the Court pleases.

BELL J:   Thank you.  Yes. 

MS DE FERRARI:   Very briefly, your Honours.  Snedden is really not apposite in this case.  It only construed the words “by reason of” in section 7(c).  This cases raises the issue of construction about what is meant by “punished” in the particular context in circumstances where it is accepted that it can be through non‑state actors.  So it is not correct to say that we just said well, you have to establish that both the harm and the motive are those condoned by the state. 

We did specifically submit below, and we have put here, that harm can be ascribed to the state by reason of failing to do anything and will be doing anything and nexus ‑ that is, the reason ‑ can be ascribed by the state by parity of what at least two Judges of this Court have said in Khawar, that is, you can ascribe non‑state actors’ motive to the state when there is this kind of breach of protection or failure to prevent the harm that constitutes the punishment.  That is the first proposition.

BELL J:   But one needs ultimately the conclusion that the state - accepting that the harm may be produced by the non‑state actors and that the non‑state actors may be motivated by a proscribed reason, the state has to condone that reason.

MS DE FERRARI:   Your Honours, not on the reasoning of Khawar.  In Khawar, both Chief Justice Gleeson and Justice Kirby and, in my respectful opinion, also Justices McHugh and Gummow said in this type of situation you can satisfy the nexus simply by the motive of the non‑state actors.  Your Honours will have seen in the submission we have shown that repeatedly, including this Court in Snedden, has pointed to the analogies between this provision and Article 102 of the Refugees Convention.  The Full Court said that does not really assist because punishment under section 7(c) has to be by the state.  They put the words “by the state” in bold.  But there are no such words in section 7(c). 

Once you accept the non‑state actors, what non‑state actors do, which are under your control – they could not be more under the control of Bosnia if one tried.  They are prisoners.  Once you accept that what non‑state actors do can be ascribed to the state, then why do you not just ascribe the motive?

BELL J:   That is an argument about why one might ascribe to the state the motive of the non‑state actor.  That does not seem to me to then depart from the analysis that the Full Court took.  I thought a moment ago you were arguing a different point based on the refugee cases.

MS DE FERRARI:   Yes, because the Full Court said what you have to prove, by direct evidence, in a sense, is something that shows it condoned the motive.

BELL J:   Yes.

MS DE FERRARI:   But there is nothing in Khawar that say you have to show that it approved of the motive of the non‑state actors – quite the contrary.  You just ascribe it.  You have the duty.  Once you ascribe the harm to the non‑state actors, their purpose – you might not even know about it.  In this case Bosnia knew, but you might not even know about it.

EDELMAN J:   Is that a submission that you attribute motive of the non‑state actors where the non‑state actor is under the control of the state or is it a submission that you always attribute the motive of the no‑state actor to the state?

MS DE FERRARI:   Your Honours, your Honours will know that we have said really condoning, acquiescing and so on, they are all gloss on the statutory word and so we are pressing here this is a novel point of statutory construction not decided by Snedden which circumstance is quite different.  So I do not want to accept the word “condoning” and so on.

One proposition that we have put repeatedly is, if condoning is the right word, then what more do you need?  That is one position but really it has to be punishment on surrender.  It is clear that he is going to be harmed, it is clear that he is going to be harmed by reason of his political opinion.  The harm is not going to be prevented ‑ that is clear.  But why is the reason of the non‑state actors not attributed under this statute provision to the state?  What about the reasoning of Chief Justice Gleeson and Justice Kirby in Khawar is not applicable and the answer is in our submission it would be an appeal point but none.  It applies.

BELL J:   But if your construction argument fails, then you accept that your difficulty is you have concurrent factual findings against you?

MS DE FERRARI:   No, your Honour, because I think, as I said, the findings are all ‑ both the primary judge and the Full Court just said well, you did not show that in 2007.  It might not have been by reason of the fact that ‑ ‑ ‑

BELL J:   Their Honours accepted that there was no basis for a conclusion other than that the same conditions would apply on return.

MS DE FERRARI:   True, but there is no finding at all about it would apply by reason of unspecified cases.  That is the point I made.  It cannot be by reason of unspecified matters such as lack of resources and so on because Bosnia had the opportunity to say any of those things and it did not.  Bosnia accepts it is going to happen again. 

There is no finding at all about condoning it in 2017, or whenever it might be.  They are just saying you have not shown enough to show that it condoned the harm and the conduct back in 2007.  Your Honour has put it - what else can you do and what else do you say about the fact it is going to happen again by the state to a prisoner under his custody from other prisoners.  Your Honours, I see that my time is up.

BELL J:   Yes.  The Court will adjourn briefly to consider the conduct of the matter.

AT 11.58 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.01 PM:

BELL J:   There will be a grant of special leave in this matter.  What is the likely estimate, Ms de Ferrari?

MS DE FERRARI:   Between half a day and a day - not a full day but it might be a little bit more than half a day, your Honour.

BELL J:   Very well.  It suffices then to remind the parties to collect from the Registry the timetable with respect to filing of submissions and to encourage the parties to adhere strictly to that timetable.

The Court adjourns to 10.15 on Tuesday, 7 November.

AT 12.01 PM THE MATTER WAS CONCLUDED