Re: The Minister for Immigration and Multicultural Affairs and ANOR Ex parte SE M99/1998 [1998] HCATrans 397 (30 October 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M99 of 1998

In the matter of -

An application for Writs of Prohibition and Certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

THE REFUGEE REVIEW TRIBUNAL

Second Respondent

Ex parte -

"SE"

Prosecutor/Applicant

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 30 OCTOBER 1998, AT 4.03 PM

Copyright in the High Court of Australia

MS K.P. HANSCOMBE: In this proceeding, I appear for the applicant. (instructed by Refugee and Immigration Legal Centre)

MR A.L. CAVANOUGH: I appear on behalf of the Minister. (instructed by the Australian Government Solicitor)

HIS HONOUR: Thank you both for getting here quite quickly, this matter having just been listed this afternoon. I would also like to thank Auscript for making arrangements to be here so quickly.

Yes, Ms Hanscombe.

MS HANSCOMBE: Your Honour, if I may begin also by thanking your Honour for sitting at such very short notice.

HIS HONOUR: I am duty Judge this week and that is my duty.

MS HANSCOMBE: This is an application, your Honour, by a man currently in detention, who is to be removed from Australia tomorrow. The basis of the application is that his case before the Refugee Review Tribunal was refused and he was advised that the decision was not judicially reviewable. He was not legally represented in the Refugee Review Tribunal and the advice he had that his decision was not reviewable came from Victoria Legal Aid which declined to provide any further assistance. It would appear that following a recent decision in the Full Federal Court in a matter of Abdalla that this advice was possibly incorrect. If I could very briefly summarise the nature of the decision in the Review Tribunal and of Abdalla I hope that that will become clear.

SE fled Somalia where your Honour might be aware there is raging a war. The Tribunal accepted that his father and brother had both been killed and that his sister had been raped three times and subsequently committed suicide as a result. The Tribunal also accepted that the reason for these events was that he belonged to the wrong clan, if I can put it that way. This war is between clans. He gave evidence, which was accepted, that if he was sent back to Somalia that it was likely he would be killed and, indeed, one of the exhibits to the affidavit in support, he is to indicate exactly that. It says that if he is not sent to the right clan area he will not last 24 hours.

The Tribunal held, on the basis of the British decision, Adan, that these sorts of circumstances did not give rise to a fear of persecution which would be protected by the Convention. The Full Federal Court in Abdalla has held that that is not the law in Australia. Abdalla was decided after the appeal time had expired pursuant to which SE might have appealed the decision of the Refugee Review Tribunal. But at least on the information presently available, it would appear that whatever arguments were advanced in Abdalla could have been advanced in such an appeal.

There are two other matters which we would submit would attract the jurisdiction of the Court, at least two on an interim basis, and they are these: one is that there is still before the Minister a request pursuant to section 48A of the Migration Act 1958 in relation to a fresh application for a protection visa and there has been no response received from the Minister in relation to that application. My instructing solicitor is unaware of the status of that application.

The second matter which, in my submission, ought to be of concern to this Court is a matter which has earlier arisen in the matter of Farah before your brother Justice Hayne. That is the matter that persons in the position of SE are being removed from Australia by being given into the custody of a private security firm who then carry out the removal. We understand that this is a subcontracted matter.

Now, a real question arises, your Honour, in my submission, as to whether that is a proper exercise of the power to remove a person from Australia pursuant to section 19B of the Migration Act and it brings with it the ancillary question of what constitutes a removal within power, whether it is sufficient simply to put the person on an aircraft and see them depart our shores or whether it entails ensuring that they are safely delivered to the place where they are sent. As I say, I am instructed that this matter was raised in the matter of Farah but never resolved in this Court because Mr Farah's case was otherwise disposed of administratively.

The information which we have been able to assemble in the short time since my instructing solicitor received instructions this morning is set out in an affidavit of my instructing solicitor sworn today, the affidavit of Caroline Julie Graydon and its exhibits. All that we would seek at the present time, your Honour, is interim relief by way of an injunction preventing the removal of SE from Australia until these matters can be properly examined. We seek it on the basis so eloquently laid out by this Court in Tait's Case, that is the inherent jurisdiction of any court to preserve the subject matter of a controversy before it.

If any of these matters which we say are ultra vires or in some other way not properly carried out were subsequently to be found to be well founded and SE had been removed, that would be a handful of ashes for him, a pyrrhic victory. Indeed, on one exhibit, it would appear he would be dead. So we seek, at the present, no more than an order that your Honour preserve the subject matter of the controversies which he says pend between him and the Minister pending proper examination by this Court. If your Honour please.

HIS HONOUR: Thank you, Ms Hanscombe. Would you tell me, first of all, whether or not any summons has been filed in the Court.

MS HANSCOMBE: No summons has been filed, your Honour. The only document filed in the Court is the affidavit of my instructing solicitor. I apologise to the Court for that. The matter was prepared in great haste.

HIS HONOUR: Is the affidavit of the solicitor available now? I do not have a copy of it.

MS HANSCOMBE: Yes, your Honour. I am sorry, your Honour, that affidavit was delivered to the Melbourne Registry.

HIS HONOUR: I think it may be just being brought into Court now. We are just checking with the Melbourne Registry as to whether they can send that by facsimile. How long is the affidavit?

MS HANSCOMBE: The affidavit itself, your Honour, is quite short. It is five pages. But the exhibits are somewhat more lengthy. I hope that the affidavit will provide your Honour with at least the outline of how the matter is brought to the Court.

HIS HONOUR: Does the affidavit contain anything more than you have told me now?

MS HANSCOMBE: Excuse me, your Honour, I am just checking. Save that it sets out the chronology in a little more detail, no.

HIS HONOUR: Does the Department have a copy of the affidavit? It has been served on the Department?

MS HANSCOMBE: Yes, it has, your Honour.

HIS HONOUR: Why did you not seek interim relief from the Federal Court?

MS HANSCOMBE: Those who instructed me took the view that the Federal Court had no jurisdiction, the appeal period for appeal to the Refugee Review Tribunal decision having elapsed.

HIS HONOUR: Does the Federal Court have the power to extend time or does it not have power to - - -

MS HANSCOMBE: No, it does not.

HIS HONOUR: Is that by reason of - - -

MS HANSCOMBE: It has no power to extend that appeal - - -

HIS HONOUR: Is that by reason of provisions of the Migration Act?

MS HANSCOMBE: Yes, it is, your Honour.

HIS HONOUR: There is an exclusion of the discretion which might otherwise exist in the Federal Court to waive or extend time for appealing out of time against a decision of the Refugee Review Tribunal, that is your understanding?

MS HANSCOMBE: That is my understanding of the current operation of the Migration Act, your Honour.

HIS HONOUR: So that the only way in which you could secure immediate relief was by invoking the constitutional writ, is that your understanding?

MS HANSCOMBE: Yes, that is my understanding, and I think, if I am not mistaken, Mr Cavanough for the Minister agrees that there is no power to extend that appellate period.

HIS HONOUR: Is the proposed respondent to the summons brought by SE the Minister or the Department? Who is the person who would remove SE from Australia? It would be the Minister, would it not?

MS HANSCOMBE: It is my understanding it would be the Minister for Immigration and Multicultural Affairs, by his agents.

HIS HONOUR: Yes. The case was called as "The Department of Immigration and Multicultural Affairs" and I think Mr Cavanough might have announced that he appeared for the Department, but he actually may appear for the Minister. Your intended respondent is the Minister, is that correct?

MS HANSCOMBE: Yes. It is our understanding that he by his servants or agents will be the person who removes SE. Mr Cavanough tells me he announced his appearance for the Minister. I am sorry I did not notice when the case was called that the respondent was said to be the Department.

HIS HONOUR: Maybe I will just hear what Mr Cavanough has to say at this stage.

MS HANSCOMBE: If your Honour please.

MR CAVANOUGH: If your Honour pleases, we are of course labouring under some difficulties with the shortness of time. I have only just been briefed in this matter. But the first point that my learned friend relies upon, I gather, is a suggestion that by reason of the decision of the Full Court of the Federal Court in Abdalla there is now thought to be a point to be argued that was not previously noticed or thought to be available. I think it is in that sense that my learned friend said that previously the advice to her client was that the decision was not judicially reviewable. I imagine it is in that sense, that is in the sense that there was no ground available to argue as distinct from some jurisdictional ground. I am told that that is a fair summary of things by my learned friend. Now, we would say that there is no serious question to be tried in that respect, that nothing in Abdalla's Case suggests that there was an error of law committed by the Tribunal in this case. Doing the best we can - - -

HIS HONOUR: May I start with a few just small matters. First of all, do you raise any objection to the Court dealing with the matter now, although no summons has been filed?

MR CAVANOUGH: We do not raise any objection on that basis, your Honour.

HIS HONOUR: Do you agree with the submission which was put to me for the prosecutor that access to the Federal Court is not available because of provisions of the Migration Act and that therefore if any interim relief is to be afforded, it can only be afforded by this Court under the Constitution?

MR CAVANOUGH: Yes, I accept that, your Honour.

HIS HONOUR: Have you a copy of this decision with which I am not familiar in Abdalla yourself?

MR CAVANOUGH: I have been provided with a copy just before coming to Court and I have read three-quarters of it.

HIS HONOUR: Yes, well you are three-quarters of the way in front of me because I do not have it and I have not read it. Not having it, I cannot read it. I do have now, it having been supplied by facsimile, the affidavit of Caroline Julie Graydon, solicitor for the prosecutor. Do you have that affidavit?

MR CAVANOUGH: Yes, again that was made available to me as I sat down just as your Honour came on to the Bench really, and I have skimmed through it. That is as much as I have read of that, but - - -

HIS HONOUR: Again, you are a skim ahead of me because I have not had time to read it yet. Perhaps we can both take a few minutes to read it, because I think that ought to be done, and then you might let me know whether you wish to cross-examine Ms Graydon and also whether you have any evidence that you want to put before me on behalf of the Minister because this is a formal application for an order from the High Court of Australia and it has to be dealt with formally. So I will read the affidavit now of Caroline Julie Graydon sworn 30 October 1998 which has just been handed to me and which I understand is now available to the respondent and you can read it too, Mr Cavanough.

MR CAVANOUGH: Thank you, your Honour.

HIS HONOUR: Yes, I have read now the affidavit of Caroline Julie Graydon. Have you had time to read that too, Mr Cavanough?

MR CAVANOUGH: Yes, I have now read that, your Honour.

HIS HONOUR: Is there any part of the affidavit that you object to?

MR CAVANOUGH: No, I do not object to any part of it in this interlocutory application, your Honour, on any evidentiary ground, no.

HIS HONOUR: Thank you. Do you wish to ask any questions of Ms Graydon?

MR CAVANOUGH: Perhaps I should just ask this one.

HIS HONOUR: Is Ms Graydon present in the Court in Melbourne?

MR CAVANOUGH: Yes, she is.

HIS HONOUR: Do you ask that she be sworn so that you can question her?

MR CAVANOUGH: Yes. Perhaps if I could foreshadow the one small matter I wish to raise.

HIS HONOUR: If you would like to ask Ms Hanscombe, and if that can be sorted out between you, that may solve the problem. Otherwise the witness will have to be sworn. Is there a Bible handy if the witness wishes to be sworn?

HIS HONOUR: Hold that for the moment and Mr Cavanough can indicate whether he wishes to ask the deponent any questions.

MR CAVANOUGH: Yes. I just want to ask two or three very short questions, if I may.

HIS HONOUR: Very well. That is your right.

MR CAVANOUGH: It should not involve any controversy.

HIS HONOUR: Is Ms Graydon there. Ms Graydon, do you wish to take the oath or will you make an affirmation?

MS GRAYDON: I would like to make an affirmation, your Honour.

CAROLINE JULIE GRAYDON, affirmed:

HIS HONOUR: Is your name Caroline Julie Graydon?---Yes, your Honour.

Are you a solicitor of the Supreme Court of Victoria and the deponent in the affidavit which has been filed in these proceedings?---Yes, I am, your Honour.

CROSS-EXAMINED BY MR CAVANOUGH:

MR CAVANOUGH: Ms Graydon, I just want to show you, please, a copy letter from the Minister addressed to yourself dated 29 October 1998 apropos of what you say in paragraph 14 of your affidavit to the effect that to date there has been no response from the Minister in relation to your request that he intervene under section 48B of the Act. Can I just show you this letter form my brief, if I may, dated 29 October 1998. Have you now read that letter?---I have read that letter.

Have you seen it before?---No, I have never seen that letter before.

It has not reached you?---I have not received that letter and I did have a telephone conversation with my colleague probably an hour ago and I did ask him whether we had received any response from the Minister's office and he advised me that we had not.

I see.

HIS HONOUR: Who is that colleague?---His name is Matthew Beckman.

And he is an officer of the Department of Immigration and Multicultural Affairs, is he?---No, he is also a solicitor at my office, your Honour.

I see. How would he know? Is he your principal or is he in charge of the case or how would he know the Minister's position?---He is the co-ordinator. He is a co-ordinator of the Refugee and Immigration Legal Centre which is the service I am employed by and I have been out of the office today, your Honour, so I rang into the office to see whether there had been any response from the Minister.

And he told you that as far as he was aware there was no such response?---That is correct, your Honour.

But you have now seen a letter which apparently is a copy of the Minister's response?---That is right, your Honour, and it is refusing - the Minister is declining to intervene under his power under section 48B of the Migration Act in the applicant's case.

Very well, thank you. Yes, Mr Cavanough.

MR CAVANOUGH: I wish to ask no other questions of the witness except this: I am instructed, Ms Graydon, that subsequent to the Minister making this decision that is embodied in this letter, there was a further request to him to intervene under section 48B made to him this morning on behalf of your client, is that correct?---Yes, that is right. I prepared further material to be attached to the initial request that the Minister intervene under section 48B and I faxed that through to the Minister's office at approximately 5.30 or 6 o'clock last night. At that point, I was not aware that the Minister had already signed off on the request.

All right. I am further instructed, Ms Graydon, that the Minister some 45 minutes ago made a decision to refuse that application, whether it be viewed as a further application or the same application enhanced. Have you been given any notice of that decision of the Minister before my making that remark?---No, I have not.

I wish to ask no other questions of the witness, your Honour.

HIS HONOUR: Do you have any questions, Ms Hanscombe?

MS HANSCOMBE: No, your Honour.

HIS HONOUR: Very well. Thank you very much. You can stand down and sit with your counsel, Ms Graydon.

(THE WITNESS WITHDREW)

HIS HONOUR: Do you have any evidence of your own, Mr Cavanough, that you want to call or tender?

MR CAVANOUGH: I would like to tender, really for completeness, at least the letter of 29 October 1998 which - - -

HIS HONOUR: Will you read that on to the record.

MR CAVANOUGH: Yes. It is a letter to Ms Graydon, Refugee and Immigration Legal Centre Inc, PO Box 2299, St Kilda, Victoria, 3182, from the Honourable Philip Ruddock, MP, Minister for Immigration and Multicultural Affairs.

Dear Ms Graydon,

Thank you for your letter of 28 October 1998 on behalf of Mr SE requesting that I consider exercising my ministerial discretion under section 48B of the Migration Act.

Under this section of the Migration Act 1901 , I may allow a person to make a further application for a protection visa if I think it is in the public interest to do so.

Your request for the exercise of my power under section 48B was referred to me. However, I have decided not to consider exercising my power in Mr SE's case.

Thank you for bringing this matter to my attention.

Yours sincerely,

Philip Ruddock

29 October 1998

That completes the letter.

HIS HONOUR: I will mark that letter, which should be left with the Registry in Melbourne, as exhibit R1.

EXHIBIT: Exhibit R1....Letter from P. Ruddock dated 29/10/98

MR CAVANOUGH: Yes, your Honour. Beyond that I wish only to inform the Court that according to my instructions, the Minister did make a further decision some 45 minutes ago, in effect, repeating this decision to the effect that he had decided not to consider exercising his power under section 48B of the Migration Act.

HIS HONOUR: Yes, very well. I note that statement. Is there any evidence that you wish to tender in reply, Ms Hanscombe?

MS HANSCOMBE: No, your Honour, there is not. Can I, your Honour, correct something which I said earlier, and my instructing solicitor has informed me was not correct, and I apologise to the Court? I thought it was correct. The Refugee Review Tribunal, in its decision, did find as facts that SE's father and brother had been killed in the fighting in Somalia and that the rapes of his sister leading to her suicide had occurred. I earlier stated to your Honour that it also found that that was as a consequence of the clan fighting and I have been instructed, while Mr Cavanough was making his submissions, that that was incorrect and I apologise to the Court. I had thought that that finding had been made.

HIS HONOUR: That is to say that the sister's rape and suicide was connected with the clan fighting or that all three incidents: the father's death, the brother's death and the sister's death were connected with the clan fighting? That is your understanding of the Tribunal's decision?

MS HANSCOMBE: I still have not made myself clear, I am sorry, your Honour. All three incidents arose out of the civil war and clan fighting occurring in Somalia but they did not arise, as found as a fact by the Tribunal, because of the particular clan that SE belonged to. If I misled your Honour on that point earlier, I apologise. There is no other - - -

HIS HONOUR: I now have received the decision and reasons for decision of the Refugee Review Tribunal which has a mark CJG2, it being an annexure to the affidavit of Ms Graydon, and there is also annexed to that affidavit a letter, CJG7, which is a letter from the Minister to Mr Martin Clutterbuck of 22 July 1998, and an annexure CJG5, being part of a letter from Amnesty International Australia to the Minister. I am not sure of the relevance of the last letter but they are the only annexures which have reached me in Sydney.

MS HANSCOMBE: Your Honour, can I tell the Court that because of the haste with which the affidavit was prepared, the exhibit numbers begin incorrectly at CJG2. They then run sequentially from 2 to 9 inclusive. Ms Musolino, who is present in Court, tells me that the exhibits in their entirety are in the process of being faxed to the Court.

HIS HONOUR: Yes. Well, I just identified those exhibits which I have presently received and it may be that, for present purposes, I do not need the rest of the exhibits. I think we should press on, in view of the hour, and just see what you have to say about the relief that is sought. Now, my understanding is that, first of all, this matter could not now be remitted by me to the Federal Court of Australia. Is that correct?

MR CAVANOUGH: Everyone is looking at me, your Honour, for an answer to that. I think it is not impossible for your Honour to remit the matter.

HIS HONOUR: But it would have no utility, as I understand it.

MR CAVANOUGH: That may be some view of the proposal.

MS HANSCOMBE: Yes, I think that is correct.

MR CAVANOUGH: I think it is proposed at the moment that the applicant be removed at 8.35 am tomorrow, according to my learned friend's material. I imagine it is for that reason that it might be lacking in utility to remit the matter at this stage, your Honour.

HIS HONOUR: Very well. In relation to this matter, is the position that the parties have had discussions and that the Minister would not be agreeable to withholding the removal of the applicant until further consideration either by this Court or by the Federal Court of Australia and that if the applicant or prosecutor is not to be removed, it is necessary for an order to be made.

MS HANSCOMBE: Your Honour, my instructions are that the last discussion in relation to the removal of SE took place yesterday late in the afternoon. The matter of seeking an injunction, I am instructed, was not discussed and certainly, while I have been briefed, which is from 1.50 this afternoon, there have been no such discussions.

HIS HONOUR: I only ask that question because when I dealt on Christmas Eve last year with the case of Abebe, which will shortly be coming before the Court, I was then informed by counsel appearing for the Minister that the Minister was not agreeable to providing, by agreement, an undertaking not to remove the prosecutor from Australia until the time when the Court could come back to the matter and that if it were the Court's view that the prosecutor should not, in that case, be removed from Australia, it would be necessary to make an order. Now, is that the same position in this case?

MR CAVANOUGH: I believe so, your Honour, yes. On my instructions, that is the same position.

HIS HONOUR: Very well. Well now, Mr Cavanough, the position is this: I do not have the judgment in the case of Abdalla. I am not familiar with the decision of the English Court in Adan which apparently the Federal Court has differed from. I would be prepared on the material that is now before me to disregard entirely the ground of intervention under the suggested basis of the Migration Act, section 48B, as the Minister seems to have addressed his attention to that and I would be prepared to accept what you have said to the Court about the Minister's reconsideration of the further matter and his determination that he should not, at this stage, exercise any powers he has under that section. But that leaves the two questions which have been raised by Ms Hanscombe, namely, the question of the application to the facts of this case of the decision of the Federal Court in Abdalla and the suggested objection to the removal by a person other than the Minister or Crown agents of the Minister.

Now, the question before me, therefore, is whether, the Minister not being agreeable to undertake not to remove SE until further consideration of those matters by this Court, the balance of convenience and the due exercise of the powers of the Court to protect the right of SE to have properly determined the constitutional writ which he has indicated he intends to invoke, do not require that I should provide an order as sought, operative until next Wednesday when the matter could be returned before Justice Hayne, sitting in Melbourne. Now, the question that I want your help on is whether or not the balance of convenience would not dictate that, for that relatively short time and bearing in mind that SE will remain in migration detention in the meantime, it is not appropriate for me now to make such an order returnable before Justice Hayne next Wednesday, 4 November at 9.30 am in Melbourne? Why should I not proceed in that way?

MR CAVANOUGH: Your Honour, my instructions were to put to the Court that no serious question had arisen. It would be, at the very least, extremely difficult for me to persuade your Honour that if there were any serious question to be tried the balance of convenience were not against my client in the way - - -

HIS HONOUR: But how can I determine the serious question issue without having available to me the decision of the Full Federal Court in Abdalla, the decision of the English court in Adan and possibly a consideration of those provisions under which, as it appears, persons are removed purportedly pursuant to section 19B of the Migration Act by persons who are not officers of the Minister?

MR CAVANOUGH: Your Honour, I can really only seek to correct a couple of things that have been put by my learned friend in those respects. First of all, the Tribunal did not refer to Adan's Case at all. Adan's Case was, in turn, referred to in the Full Court decision in Abdalla and it would have been our submission that there is no conflict between Abdalla and the reasoning of the Tribunal in this particular case. But your Honour would no doubt say to me, "Well, I still need to read Abdalla in order to assess that submission" and your Honour does not have it and that does make the difficulty. It is an unreported decision of 16 August of this year, the short point of which was, as I understand it, to the effect that where a civil war or a disturbance is occurring in a country and a person flees from it, it is still possible that the fleeing may be convention related albeit it occurs in the course of a civil war or a disturbance, which is not, in itself or of itself sufficient.

It was an error of the kind I have sought just to refer to that was made in Abdalla, according to the Full Federal Court but we say no such error occurred in the reasoning in this case. But, obviously, your Honour would want to read the decisions in order to assess for yourself what precisely was said in those cases, and I appreciate that.

HIS HONOUR: Would you be good enough to read on to the record the names of the two cases because not only do I not have them and not only do I not read them and not only am I not familiar with them, but I do not even know how they are spelt and I do not know their citations.

MR CAVANOUGH: Yes, your Honour. Well, the Full Federal Court decision is entitled K-H-A-D-R-A M-O-H-A-M-E-D A-B-D-A-L-L-A v Minister for Immigration and Multicultural Affairs No NG56 of 1998 in the Federal Court, decided by Justices Burchett, Tamberlin and Emmett on 20 August 1998, unreported, but available over the Internet. In that case there is reference to Adan, an English case, A-D-A-N v Secretary of State for the Home Department [1998] UKHL 15; (1998) 2 WLR 702, which was distinguished in Abdalla. Of course, the present case of SE - - -

HIS HONOUR: Is Adan the case in which the third participating Lord Justice begins his judgment with a quote from the Statue of Liberty?

MR CAVANOUGH: I am not sure, your Honour, it may be.

HIS HONOUR: I was reading such a case this morning and I suspect that might have been Adan. So, I may have glanced at Adan but I am not really familiar with it and I really have not read Abdalla.

MR CAVANOUGH: No. I will try and find - I can read to your Honour what is said by the Full Federal Court about Adan if that is of any help. There seems to be a short passage dealing with it. It might at least tell your Honour whether it is the same case. The Full Court said:

The respondent referred to the recent decision of the House of Lords in Adan v The Secretary of State for the Home Department [1998] UKHL 15; [1998] 2 WLR 702. This decision was referred to in support of a proposition that a state of civil war, in which widespread clan killing and torture takes place, will not give rise to a well-founded fear of persecution where the individual claimant is at no greater risk of adverse treatment than others who are at risk in the civil war for reasons of their clan and sub-clan membership. Their Lordships held that on the material in that case the applicant was not a refugee within the Convention.

Lord Lloyd (with whom all other members agreed) after reviewing the authorities, concluded (at 713) that:

"where a state of civil war exists, it is not enough for an asylum-seeker to show that he would be at risk if he were returned to his country. He must be able to show.....a differential impact. In other words, he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of planned warefare.

At 714, his Lordship continued:

Mr Adan's evidence was that members of his own sub-clan were particularly at risk because they had attached a militia stronghold of the main opposing sub-clan. But I do not consider that this throws doubt on the tribunal's conclusion that all sections of society in northern Somalia are equally at risk so long as the civil war continues. There is no ground for differentiating between Mr Adan and the members of his own or any other clan.

And then the Full Court continued:

It is evident from these observations that the decision in Adan turned on the particular evidence as to the circumstances of Mr Adan and the nature of the war in the north of Somalia at the relevant time. It is not in any way a controlling authority in relation to the present case. The question to be investigated before reaching a conclusion as to whether there is persecution in the present case which it raises is whether the evidence establishes that all sections of society are equally at risk so long as the civil war continues. In the RRT decision, this issue is not addressed.

Perhaps I should read one more paragraph:

The decision in Adan deals with what was apparently indiscriminate violence or oppression manifested towards all clans without any differential impact based on clan membership. In the present case the RRT was concerned with what the evidence indicates is the special position of the Marehan clan by reason of its association with the former regime. There is support in the findings of the RRT for the conclusion that the Marehan are in a different position as to risk in the civil war because of their identification with the former president.

HIS HONOUR: Very well.

MR CAVANOUGH: Your Honour, perhaps I ought read to you what I think is the central passage of importance in Abdalla which occurs a few paragraphs ahead of what I have just read to you. There is a paragraph that reads as follows:

In substance the RRT decided, in the present case, that the recurring pattern of communal violence, which it found to exist in Somalia, did not amount to persecution because there was -

and these words are emphasised -

no systematic course of conduct. The requirement, in our view, was too widely expressed. Where there is a recurring pattern of violence towards a person on a Convention ground, there is no reason why such conduct may not constitute `persecution'. Clearly `persecution' involves more than a random act. To amount to `persecution' there must be form of selective -

with that word emphasised -

harassment of an individual or of a group of which the individual is a member. One act of selective harassment may be sufficient. The fact that a recurring pattern can be loosely described as communal violence or even civil war does not mean that it cannot amount to `persecution'. It is necessary to examine the situation further in an attempt to determine the purpose which gives rise to the violence or danger.

That, I think, is the essence of what the case is about.

My learned friend's submissions to the Minister seeking the exercise of a discretion since have focused on that case and said, "Well, the law is now to be understood differently from the way it was previously to be understood. The RRT got it wrong in the present case." Our simple response is that, "No, the RRT did not get it wrong in this particular case. The facts and the findings were such as to distinguish this case from what the RRT did in that earlier case."

HIS HONOUR: Well, I understand that submission but having failed in his appeal to the Executive Government of the Commonwealth, the applicant or prosecutor has now invoked the right which the Constitution protects in this country to seek the intervention of the judicial branch of government and the question is whether I ought not to protect that right at least until Wednesday next, given that the applicant, as apparently an attempt was made earlier to remove him from Australia this week without success - - -

MR CAVANOUGH: I think yesterday, your Honour.

HIS HONOUR: - - - he will be in immigration detention until the matter can be dealt with in a proper and seemly way and the delay is only until Wednesday next, which is a relatively short interval.

MR CAVANOUGH: Yes, your Honour. I understand, your Honour. Perhaps I ought to say one other thing about the other bases upon which my learned friend relies, just, if I may, for clarification.

HIS HONOUR: Yes.

MR CAVANOUGH: My learned friend referred to a section 19B. I do not believe there is any such section in the Act. The relevant section is 198 which provides that:

An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed,

And subsection (2) provides:

An officer must remove as soon as reasonably practicable an an lawful non-citizen -

who, in effect, falls into the category that this individual would fall into, absent something else happening.

HIS HONOUR: Is "officer" defined under the Act?

MR CAVANOUGH: Yes, it is, your Honour, I am told, and I will find the -

"officer" means:

(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or

(b) a person who is an officer for the purposes of the Customs Act, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or

(c) a person who is a protective service officer for the purposes of the Australian Protective Service Act 1987 , other than such a person specified by the Minister in writing for the purposes of this paragraph; or

(d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or

(e) a member of the police force of an external Territory; or

(f) any other person authorised by the Minister, by notice published in the Gazette, to be an officer for the purposes of this Act.

Now, one other thing I should, I think, bring your Honour's attention - - -

HIS HONOUR: All of those persons would be officers of the Commonwealth for the purpose of the Constitution.

MR CAVANOUGH: That would be so, your Honour.

HIS HONOUR: But has the private protective service, which apparently is now being used, been designated under the last-mentioned provision of that statutory description?

MR CAVANOUGH: I will just seek some instructions, your Honour. The answer is, no, your Honour, but the explanation for that, I am instructed, is that it is not thought that any such authorisation or designation is necessary in respect of what happens once the person has left Australia, and the scheme is that - this is a person who arrived by British Airways. British Airways are being asked to accept the person for removal from Australia and the person is thus duly removed. British Airways, apparently, has engaged a firm called P & I Associates to facilitate ongoing transport arrangements in Africa and I am instructed to inform the Court that as far as the Department is concerned, that firm is reputable and has been used many times before in like circumstances and that, therefore, we would say that there is nothing in the second point that my learned friend relies upon. But I appreciate the difficulties your Honour labours under in respect of the first point.

HIS HONOUR: Yes. Well, I think it is really only the first point that would be the foundation for any order which I made and, therefore, it is on that point that I ask, do you raise any challenge to the jurisdiction of the Court or its power to make an order which would stay the removal of SE from Australia until next Wednesday when the matter could be returned and dealt with fully before another Justice of the Court?

MR CAVANOUGH: No, your Honour, we raise no such objection.

HIS HONOUR: Very well. Is there anything else you wish to say on the application that has been made by the applicant?

MR CAVANOUGH: May I just seek some instructions for a moment, your Honour?

HIS HONOUR: Of course.

MR CAVANOUGH: Yes, your Honour, in the interests of the applicant, I am instructed, on behalf of the Minister, to seek an order that the name of the applicant and perhaps the case generally - the identity of the applicant not be disclosed. Let me start again. I am instructed to ask for an order, the effect of which would be to prohibit the publication of anything identifying the applicant in this proceeding.

HIS HONOUR: What is the power of the Court to make such an order? We can adopt the expedient which was referred to by Lord Scarman in the Leveller Case, that is to say, I can simply refer to the applicant as SSE or some alphabetical description. I do not know whether there are members of the public or members of the press who are present in the hearing room in Melbourne but - - -

MR CAVANOUGH: There are not, your Honour.

HIS HONOUR: I am not sure what powers I would have to prohibit publication but can adopt an expedient that will have that effect, if that is an appropriate thing to do and if Ms Hanscombe joins you in that application.

MR CAVANOUGH: Perhaps I might ask Ms Hanscombe for her reaction, if I may, at the moment.

MS HANSCOMBE: Your Honour, I am not instructed either to make or to support such an application.

HIS HONOUR: May it not be a wise thing to do though, in order to ensure that in the event that in the ultimate determination of this matter your client is returned, that no danger should come to him by reason of his having resisted an application to return him to the country of which he is a national?

MS HANSCOMBE: Your Honour, in so far as those remarks extend to the suppression of his name, it may well be a proven course. As to the wider matter of suppression the whole fact of the application and so, in my submission, it would not be appropriate.

HIS HONOUR: I did not understand Mr Cavanough to be asking that the application be suppressed but simply my note is that he asked that an order be made that the identity of the applicant not be disclosed. Now, that is a very different matter than suppressing the entire proceedings. I would certainly not consider suppressing the entire proceedings but I would be inclined to agree with Mr Cavanough that the identity of the applicant should not be disclosed. Do you have anything to say?

MS HANSCOMBE: No, I would say nothing against an order of that compass.

HIS HONOUR: Yes, very well. Is there anything else that you wish to say, Mr Cavanough, or have you said everything that - - -

MR CAVANOUGH: Nothing else, your Honour.

HIS HONOUR: - - - the Minister would want you to say in this application?

MR CAVANOUGH: I believe so, your Honour.

HIS HONOUR: Yes, thank you very much. Is there anything you wish to say in reply, Ms Hanscombe?

MS HANSCOMBE: No, your Honour.

HIS HONOUR: Yes, very well. The name of these proceedings will not include reference to the identity of the prosecutor who will be identified simply by the initials SE.

Late on a Friday afternoon, the Court was informed that an urgent hearing was sought by SE (the prosecutor) for an order restraining the Minister for Immigration and Multicultural Affairs (the Minister) from removing the prosecutor from Australia. The Court was informed that unless an order were made, the prosecutor would be removed by air tomorrow, 31 October 1998.

Upon being informed of the application by the Melbourne Registry of the Court, I directed that it be listed before the Court one hour later. It has been heard by video link between Sydney and Melbourne. I express appreciation for the assistance which the Court has received from the Federal Court of Australia, whose facilities have been used, and from counsel for the parties to ensure that the matter could be dealt with, so far as possible, promptly and in a way that took into account the relevant legal considerations.

The facts

The prosecutor is a national of Somalia. For some years, as I am prepared to notice, that country has been the subject of serious civil war and inter-clan violence. According to an affidavit of the prosecutor's solicitor which was provided by facsimile and read before me, the prosecutor's family have suffered greatly in the conflict in Somalia. It was accepted by the Refugee Review Tribunal (RRT) that his father and brother had been killed in the conflict and that his sister had been raped in the course of the conflict and had later committed suicide.

The prosecutor arrived in Australia on 2 October 1997. On 8 October 1997 he lodged an application for a protection visa under the Migration Act 1958 (Cth). On 25 March 1998 a delegate of the Minister refused to grant such a visa. On 30 March 1998 the applicant sought review of that decision. That review was heard by the RRT. It was decided on 21 May 1998 in Melbourne. The decision affirmed the decision of the Minister not to grant the prosecutor a protection visa.

It is not entirely clear to me what course ensued after the RRT decision. It is plain that representations have been made to the Minister for the exercise by him of powers vested in him under the Migration Act to permit the prosecutor to remain in Australia by reason of the suggestion that he is entitled to refugee status under the International Convention and Australia's domestic law which provides that the Convention grounds are part of the law of this country. Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 231, 250, 292.

As I have been informed, the prosecutor was not legally represented before the RRT, or at least was not represented so as to ensure that all legal considerations which might be available to him were brought to his knowledge for his instructions. However that may be, the application now made for immediate relief is based upon three grounds: first, that the decision of the RRT failed to take into account considerations which, since that decision was reached, have been made clear by a decision of the Full Court of the Federal Court of Australia in Abdalla v The Minister for Immigration and Multicultural Affairs unreported, 20 August 1998, reference NG56/1998; secondly, the fact that the Minister had not concluded his consideration of applications which were made to him under section 48B of the Migration Act for the exercise of powers conferred on him by that Act; and, thirdly, that the removal of the prosecutor pursuant to section 198 of the Migration Act was, in the manner in which the Minister intended to effect it, beyond the powers conferred upon the Minister by that Act.

Jurisdiction and power of the Court

Several considerations may be immediately put to one side in the determination of this urgent application. First, no summons has yet been filed. The only document which has been filed in the Registry of the Court, in the exigencies, is the affidavit of the prosecutor's solicitor. No objection is raised by the Minister on that ground.

Secondly, the jurisdiction and power of the Court to provide interim relief at the request of the prosecutor is not contested by the Minister. I am satisfied that such power exists to protect the utility of the proposed proceeding in this Court as was demonstrated by the Court's decision in Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620 at 625. A like jurisdiction has been exercised in many decisions since.

Thirdly, it was conceded for the Minister, very properly, that there would be no utility at this stage for me simply to remit the proceedings to the Federal Court of Australia. Whatever may be the limitations on the power of that Court, having regard to amendments to the Migration Act, (See Re Minister; ex parte Abebe [No 2] (1998) 72 ALJR 630 at 631) any such remitter could not, as a practical matter, be determined by that Court, at least readily, in the short interval of time which now exists between the present moment and the time of the intended removal of the prosecutor from Australia tomorrow.

Fourthly, the Federal Court has, it was agreed, no power to extend time to the prosecutor for an appeal against the orders of the RRT so as to attract to that Court a general jurisdiction to deal with the matter. This consideration provides a further reason why remitter to the Federal Court is not a suitable course.

The issues before me are therefore the conventional ones. Are there serious questions to be tried in the application to this Court? What does the balance of convenience require in the circumstances?

Questions to be tried

So far as two of the grounds relied upon by the prosecutor are concerned, I would not be inclined, if they stood alone, to consider that either of them provided such a serious question to be tried that they would (either alone or in combination) warrant my taking what I regard as the serious step of intervening to prevent the performance by the Minister of the functions which are assigned to him by the law of Australia and which he is otherwise minded to pursue.

So far as the second of the cited grounds is concerned, it would appear to rest on a false factual premise. As a result of these proceedings, and during the hearing, there was shown to the solicitor for the prosecutor a letter which was signed by the Minister earlier this day. It indicated his consideration of the further materials which had been proffered to him by and for the prosecutor for the exercise of his powers under section 48B of the Migration Act. The Minister has declined to exercise those powers in a way favourable to the prosecutor. Although certain additional materials were apparently placed before the Minister later this day, counsel for the Minister informed me, and I fully accept what he says, that these further materials were also considered by the Minister. The Minister has determined to adhere to his decision. Accordingly, I do not, at least on the materials now before me, consider that there is a serious matter to be tried on the second cited ground.

So far as the third ground is concerned, it raises an objection based upon the language of section 198 of the Migration Act. That section makes provision for the removal of persons from Australia by certain authorised persons, all of whom would be officers of the Commonwealth for the purposes of the Constitution. The Court has been informed that, in the present case, it is the intention of the Minister to make arrangements, unless restrained, to remove the prosecutor from Australia by use of British Airways, a reputable international air carrier, and using P & I Associates, a private security firm, to facilitate the removal of the prosecutor to Somalia in Africa. The view which the Minister has taken is that, after the prosecutor is placed upon an airline belonging to a foreign country, such as British Airways, the removal from Australia is concluded once the aircraft leaves Australia. At least for my present consideration of the matter I am inclined to agree with that understanding of section 198 of the Migration Act. Accordingly I would not, as presently advised, be inclined to consider that there is anything in the third point.

The first point, however, is of a different character. It concerns the

recent decision of the Full Court of the Federal Court in Abdalla. This, in turn, addressed an earlier decision of the House of Lords in Adan v Secretary of State [1998] UKHL 15; [1998] 2 WLR 702. These decisions both concern the particular considerations which may arise in respect of claims for refugee status by persons who become caught up in civil wars. It is possible that similar considerations may arise in this Court when, next month, it turns its attention to the case of Abebe v Minister for Immigration and Multicultural Affairs which is listed to come before the Court in the next sittings in Canberra.

In these circumstances, and without access to the decision of the Federal Court which is unreported, it is difficult for me to evaluate at this late hour the significance, if any, of the differences of opinion between the Full Court of the Federal Court of Australia and the House of Lords and their implications for the prosecutor's suggested criticism of the decision of the RRT in this case. On this ground raised by the prosecutor, I am inclined to believe that there is a serious question to be tried. I therefore turn to the question of the balance of convenience.

Balance of Convenience

The prosecutor is in immigration detention. He has been so held for some time. This matter could be returned before a single Justice of the Court in Melbourne next week. It would then be possible for the formalities to be concluded, the summons to be filed, the affidavits supplementary to that of the solicitor, if any, to be before the Court and the decisions of the House of Lords and of the Full Court available for consideration as they are not now. The interval of time is short. The risks of his return to Somalia, if he is more than an anonymous victim of the civil war in that country, could, arguably, include a risk to his life. The balance of convenience strongly favours the making of an order. I did not take the Minister ultimately to contest this conclusion if there were a question to be tried.

It is, as I said in Abebe, no light matter to disturb the decision of the Minister in a case of this sort. But nor is it a light matter to deprive a person in the position of the prosecutor of the rights which the Constitution affords to every person coming under the law of Australia to have applications under section 75(v), and adjunct to such applications, heard with proper attention both to the facts and to the available legal arguments. See Re Minister; ex parte Abebe [1998] HCA 10; (1998) 72 ALJR 574 at 577, par [18]

Accordingly, in my view, orders should be made which interrupt briefly the action of the Minister to remove the prosecutor, so that the matter can be returned before the Court next week.

Orders

The orders which I therefore make are:

1. Direct that the prosecutor be named SE and that the transcript of the proceedings before the Court be amended for the purpose of ensuring that throughout the record the prosecutor is so named.

2. Order that until 4 pm on Wednesday, 4 November 1998, or until further or other order of the Court or of a Justice of the Court the Minister, his servants and agents, be restrained from removing the prosecutor, SE, from Australia. For clarification, I include in the "servants and agents" of the Minister, P & I Associates, British Airways Corporation and any other private organisation which would otherwise be engaged in the removal of the prosecutor from Australia under the Act.

3. Order that the costs of the proceedings before the Court today be costs in the cause.

4. Direct that the proceedings be listed before a Justice of the Court in Melbourne at 9.30 am on Wednesday, 4 November 1998.

5. Certify to the appearance of counsel in chambers.

Are there any other orders or variations of the orders that you would seek, Ms Hanscombe?

MS HANSCOMBE: No, your Honour.

HIS HONOUR: Are there any variations of the orders you would seek, Mr Cavanough?

MR CAVANOUGH: No, your Honour.

HIS HONOUR: Very well. They are the orders of the Court. I again express thanks to both of you for coming so quickly to this video hearing and also for the assistance which you have given me.

The Court will now adjourn.

AT 5.18 PM THE MATTER WAS CONCLUDED