CRI026 v Republic of Nauru; DWN027 v Republic of Nauru; EMP144 v Republic of Nauru [2018] HCATrans 8 (7 February 2018)

Last Updated: 8 February 2018

[2018] HCATrans 008

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M131 of 2017

B e t w e e n -

CRI026

Appellant

and

THE REPUBLIC OF NAURU

Respondent

Office of the Registry
Melbourne No M145 of 2017

B e t w e e n -

DWN027

Appellant

and

THE REPUBLIC OF NAURU

Respondent

Office of the Registry
Melbourne No M151 of 2017

B e t w e e n -

EMP144

Appellant

and

THE REPUBLIC OF NAURU

Respondent

KIEFEL CJ
GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 FEBRUARY 2018, AT 10.20 AM

Copyright in the High Court of Australia

____________________

MR A.T. BROADFOOT, QC: If the Court pleases, I appear with MR M.L.L. ALBERT and MS S. GORY for the appellant in matter CRI026 (M131/2017). (instructed by Fitzroy Legal Service)

MS C.M. HARRIS, SC: If the Court pleases, I appear with MR M.L.L. ALBERT for the appellant in DWN027 (M145/2017). (instructed by Phi Finney McDonald)

MR J.W.K. BURNSIDE, QC: If the Court pleases, in matter EMP144 (M151/2017), I appear with MR M.L.L. ALBERT for the appellant. (instructed by Allens)

MR G.R. KENNETT, SC: May it please the Court, in the matters of CRI026 (M131/2017) and DWN027 (M145/2017), I appear with MR A. ALEKSOV for the Republic of Nauru. (instructed by Republic of Nauru)

MR A. ALEKSOV: May it please the Court, in the matter EMP144 (M151/2017), I appear for the respondent. (instructed by Republic of Nauru)

KIEFEL CJ: Yes, Mr Broadfoot.

MR BROADFOOT: Your Honours, we have agreed to a division of time and we will deal with the common ground first. In relation to the complementary protection ground, the issue in our submission is whether Nauru’s non-refoulement obligations are engaged where an applicant for protection might be able to avoid inhumane or degrading treatment by restricting his movement to or remaining in part of the country to which he or she is proposed to be returned but where there is a real risk of inhumane or degrading treatment outside of that limited safe area.

The sources of Nauru’s international obligations in this case are the ICCPR, to which I will return, and the memorandum of understanding between Australia and the Republic of Nauru, specifically item 19c of that. It is common ground that those instruments impose international obligations on Nauru. It is also common ground - and we see this at paragraph 16 of the respondent’s submissions – that under the ICCPR there is:

an obligation not to return or expel a person to a country where there are substantial grounds for believing that there is a real risk of –

cruel, inhumane or degrading treatment. We see this morning the words “necessary or foreseeable” in the note which has been handed up. I will come back to deal with those.

Your Honours, may I start by taking your Honours to the memorandum of understanding which your Honours will find in CRI026 at page 308 of the appeal book. I would ask your Honours to open that page and also to open at the same time page 190.

KIEFEL CJ: I am sorry, what was the first page?

MR BROADFOOT: Page 308, Article 19 of the MOU between Australia and Nauru. It actually starts at 307:

The Republic of Nauru assures the Commonwealth of Australia that it will -

So a. is not in issue here and b. is not in issue either. It deals with whether transferees are covered by the definition of “refugee”, and c. states:

not send a Transferee to another country where there is a real risk that the Transferees will be subjected to torture, cruel, inhumane or degrading treatment or punishment -

We note the use of the word “transferee” rather than the word “refugee”, as defined in the Refugees Convention, which the previous subparagraph adopts. If your Honours could have 19c. open and again page 190, paragraph 55 of the reasons of the Tribunal in relation to CRI026. The Tribunal accepts that the person who has assaulted my client in the past:

is still in Karachi and still powerful. The Tribunal therefore accepts that there is a real possibility that the applicant will be harmed by –

that person:

or his associates in Karachi.

It goes on to say:

However, the Tribunal accepts that state protection from the police or other authorities in Karachi may be inadequate or withheld from the applicant because of . . . political connection and involvement with the MQM.

It is in that factual context that we say the issue arises and item 19c, the real risk, is engaged.

If the Court pleases, our argument depends, fundamentally, on the text of the ICCPR and item 19c and we will be putting that the surest guide to ascertaining the content of those obligations is the text, just as this Court has said on many occasions in relation to statutory interpretation. And, we note that this Court said in SZATV in relation to the Refugees Convention it was imported into domestic law by section 36 of the Migration Act that any principle regarding internal relocation has to be distilled from the text of the Convention itself. But, before we get to the text, one might ask the question, why would there be a different outcome under the ICCPR as compared to the Refugee Convention in relation to the internal relocation?

We say in relation to that that the focus of the ICCPR is qualitatively different from the Refugees Convention. The Refugees Convention is concerned through the definition of “refugee” with persons who, owing to well-founded fears of persecution, for particular reasons are outside their current countries of origin. As the Court said in SZATV that definition imports a causation test and if the causative requirement is not fulfilled no question of internal relocation arises.

But the ICCPR is concerned not with persecution per se, but with articulating rights concerned with freedom in relation to civil and political activities rather than protection. That point was touched on in SZATV, if I can go to SZATV, if the Court has that.

NETTLE J: Is that the essence of the argument, that it is concerned with rights rather than with protection? Is that what it springs from?

MR BROADFOOT: Yes, your Honour.

NETTLE J: The rights are unqualified by any causal considerations; they are just rights absolutely and therefore to be protected?

MR BROADFOOT: Correct, and there are a number of rights and they all need to be considered together. That is in contradistinction to the position – the starting position in any event – under the Refugees Convention. If your Honours will go to SZATV at page 27 of the Commonwealth Law Report at paragraph 25 where the joint reasons refer to a passage from the reasons of Lord Hope in Januzi, Lord Hope there speaking of the Refugees Convention said:

the question whether it would be unduly harsh for a claimant to be expected to live in a place of relocation within the country of his nationality is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic human rights.

Let us leave aside quality of life, but that position differs from the ICCPR which expressly is concerned with civil and political rights, whereas the Refugees Convention is focused more towards persecution. That one sees from the text of the ICCPR itself, if your Honours have that. Just going to the preamble, your Honours will note that it concerns:

recognition of . . . the equal and inalienable rights of all members of the human family –

It is concerned with:

the ideal of free human beings enjoying civil and political freedom –

Article 1 deals with the universal right to self-determination. Article 2 contains an important undertaking by each party to ensure that “individuals within its territory” have their rights respected, and they agree to adopt such legislative “or other measures as may be necessary to give effect to the rights recognized” in the Covenant. Article 3 contains an agreement to provide remedies. We say that there is no indication in the text there that the rights contemplated by the Convention need only be respected in part of any given country in question, or that derogation from them is permitted.

GAGELER J: How do you get a non-refoulement obligation out of Article 2?

MR BROADFOOT: From Article 2 through to Article 7, your Honour. The non-refoulement obligation is implied from Article 7 by the mechanism of Article 2 undertaking to respect the rights recognised in the covenant. Article 7 is the prohibition on torture, cruel, inhuman or degrading treatment or punishment and it is through the mechanism of Article 7 and Article 2 that the - - -

GAGELER J: It might be the mechanism but it is not really the text, is it? I mean, it requires, you said, implication.

MR BROADFOOT: Yes, it does.

GAGELER J: It requires at least explication of the text.

MR BROADFOOT: Yes. We accept that, yes. As I have said, we thought it to be common ground that there does arise under the ICCPR an implied non-refoulement obligation.

GAGELER J: The question is the scope of the obligation, is it not?

MR BROADFOOT: Yes.

GAGELER J: Which only arises as a matter of implication.

MR BROADFOOT: Yes, yes. But it arises in a different manner and in an instrument that is qualitatively different from the Refugees Convention where the internal relocation qualification arises because of the definition of “refugee” in Article 1(a) as was explained in SZATV. If the applicant could relocate within his or her own country it would follow that he or she was not outside of the country of origin for a relevant Convention reason.

KIEFEL CJ: But, likewise, if one could be relocated elsewhere in the country where one was not subjected to torture or to cruel, inhuman, or degrading treatment or punishment, Article 7 would not be breached either, would it?

MR BROADFOOT: We say in response to that, your Honour, that the kind of protection afforded by Article 7 – and the implied non-refoulement obligations – need to be considered and characterised harmoniously with the rights conferred by the instrument as a whole. The overall objective of promoting political and civil freedoms – and, specifically, the rights conferred by Article 12 which confers the freedom of movement right - - -

KIEFEL CJ: I understand the argument that Article 7 is expressed in absolute terms, but they are absolute insofar as the terms are express. If you are implying a term, I am not sure that the same characteristic can be characterised – can form part of the - - -

MR BROADFOOT: Well, we would say the implied term needs to be read obviously with the express terms, and those include Article 12.

KIEFEL CJ: So you would read Article 7 to something in this fashion: no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, and to that end may not be ever returned to their country of origin?

NETTLE J: If they would be subjected to any such thing in any place within that territory.

MR BROADFOOT: Yes, that is the necessary extension of our argument, and we say that that is because adopting that construction involving geographic limitations would involve denying the applicant freedom and the basic right to liberty of movement and freedom to choose their place of residence conferred by Article 12, or another way to look at it might be to say, well, if the rights under Article 12 were to be exercised, there would be a real risk of the rights under Article 7 being breached. In our submission - - -

NETTLE J: There is no freedom of movement - - -

GAGELER J: What territory are you talking about when you are talking about Article 12? If you want to link your argument to the text of these provisions, you have to do it with more precision. If you want to link your argument to international commentary or the various sources of international law referred to in the Vienna Convention on the interpretation of treaties, then again you need to be more precise. You just cannot start with a generalised implication and say there is vague things in the text that prevent a limitation on that implication.

MR BROADFOOT: In our submission, accepting that everyone lawfully within the territory of a State is to be entitled to choose his or her place of residence and to move freely - - -

GAGELER J: Which State are you speaking about?

MR BROADFOOT: Sorry, the place to which the person is proposed to be returned.

GAGELER J: Yes.

MR BROADFOOT: Requires that applicants should not be required to, for example, live discretely or remain within a particular geographical area or refrain from exercising the full extent of their rights under Article 12 in order to ensure that their rights under Article 7 are not infringed.

NETTLE J: Article 7 is not directed to Article 12 rights. It is directed, specifically, to cruel, inhuman or degrading treatment and punishment.

MR BROADFOOT: Yes.

NETTLE J: If it said, “no one shall be subjected to the risk of damage to their rights under Article 12”, I would follow it is implicit that you cannot refoule if there would be a risk anywhere in the territory but it does not say that, does it?

MR BROADFOOT: It does not say that in those words, your Honour, but reading the two articles together, in our submission, leads to that conclusion. And, in the facts of this case, CRI026, this is a case where the appellant, as the Tribunal found – and this is at appeal book 181 – has lived for most of his life in Karachi. There is a real risk of harm in Karachi and that State protection from the police or other authorities may be inadequate of withheld.

NETTLE J: So, just to follow that through, what Article 7 really implies is that no one shall be returned to a territory if it would prejudice their rights under Article 12?

MR BROADFOOT: Provided that there is the real risk of harm of the kind contemplated by Article 7, yes, yes.

NETTLE J: There would be harm if they were to exercise their rights under 12, in other words.

MR BROADFOOT: Yes. So, for example, in CRI026, we have a man who has lived most of his life in Karachi - - -

NETTLE J: Yes.

MR BROADFOOT: - - - where he is exposed to harm and the proposition is that, reading Article 12 and Article 7 harmoniously, in those circumstances, requires that he not be sent back to the country. We say that is consistent with the text of 19c which refers to return to “another country”. And, in our submission, to conclude that there is no real risk of inhuman or degrading treatment if he is returned to Pakistan but lives in the Punjab province where he has previously been in hiding, on his evidence, and has to stay away from Karachi, would be inconsistent with the right conferred by Article 12.

GAGELER J: The reference to a State in Article 12 is different from a State Party, is it?

MR BROADFOOT: I think one is a subset of the other, your Honour. A State might contemplate States that are not yet parties to the ICCPR at the time of signing of the treaty.

KIEFEL CJ: Does Article 12 impose an obligation upon the States which are party to the Convention to permit persons to move within the territory of the State – it is a freedom of movement?

MR BROADFOOT: It does through the mechanism of Article 2, your Honour, which deals with State Parties undertaking to respect the rights recognised in the covenant.

GAGELER J: So Article 12 is referring to a territory of any State, is it?

MR BROADFOOT: I think that is right, your Honour, yes.

GAGELER J: Does that accord with the international understanding of Article 12?

MR BROADFOOT: Can I take that on notice, your Honour? We might check that in a minute.

KIEFEL CJ: Article 2 refers to State Parties ensuring rights to individuals within its territory.

MR BROADFOOT: Yes.

KIEFEL CJ: So Nauru would be obliged to allow freedom of movement within Nauru.

MR BROADFOOT: Yes.

KIEFEL CJ: Is it also obliged to ensure freedom of movement in Pakistan?

MR BROADFOOT: It is obliged to adhere to its non-refoulement obligations, in our submission, in a manner that would not deprive Article 12 of practical operation.

KIEFEL CJ: The question is how it operates, though – how and where it operates.

MR BROADFOOT: Nauru does not have control over freedom of movement in Pakistan, obviously. We accept that.

KIEFEL CJ: No.

MR BROADFOOT: But the obligation to ensure to individuals within the territory, subject to its jurisdiction, the rights recognised in the covenant and, under Article 3, the rights to remedies, et cetera - it would be an odd outcome, in our submission, to read those provisions as permitting return to a place where rights under Article 12 are not going to be honoured.

GAGELER J: Mr Broadfoot, where in your submission do we find the clearest explanation in international law as to how the non-refoulement obligation is linked to the text of the International Covenant on Civil and Political Rights?

MR BROADFOOT: The decision of the Full Federal Court in MZYYL is very clear, in our submission.

KIEFEL CJ: Perhaps you should take us to it.

MR BROADFOOT: Yes. That is at (2012) 207 FCR 111. Their Honours there are considering section 36 of the Migration Act, which is the domestic legislation providing for complementary protection. The legislation under consideration is set out at paragraph 16 and your Honours will see the deeming provision in 36(2B):

there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non-citizen to relocate -

Their Honours dealt with that complementary protection regime in paragraph 18 of the decision:

The Complementary Protection Regime provides criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations to that non-citizen under the Refugees Convention. The regime establishes criteria “that engage” Australia’s express and implied non-refoulement obligations under –

relevantly, the ICCPR. Their Honours then go on to say:

The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions –

by way of example:

Unlike s 36(2)(a), the criteria and obligations are not defined by reference to a relevant international law. Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties.

They refer, by way of example, to the definition of “torture”, but then the last sentence in that paragraph:

Further, the International Human Rights Treaties do not require the non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country.

NETTLE J: That is in contradistinction to the express terms of the Australian legislation which do require that.

MR BROADFOOT: Yes.

NETTLE J: Surely it is not a decision that, properly construed, the country considering its refoulement obligations has to ignore the possibility of reasonable internal relocation.

MR BROADFOOT: Well, we say that it does go that far because the non-citizen is not required to establish that he could not relocate - - -

NETTLE J: Is not required in terms.

MR BROADFOOT: - - - and there would be little point for 36(2B) if it were - - -

GAGELER J: I am sorry, but this is really not responsive to the question I asked. This is a case decided expressly on the terms of the domestic statute. What I am interested in is the way in which as a matter of international law the Convention, particularly Article 2 in conjunction with Article 7, is interpreted as imposing a non-refoulement obligation, because there we are going to find surely the limits of the implication upon which you rely.

MR BROADFOOT: The ICCPR itself in relation to this issue has had very limited consideration as a matter of international law. There is the decision in B.L. v Australia on which the respondent relies, the decision of the Human Rights Committee in which there is a concurring opinion which is consistent with the approach we are submitting is to be regarded as correct and, in addition, the UN Human Rights Committee General Comment which your Honours will see referenced in the submission in reply in DWN027 at paragraph 38 where the United Nations Human Rights Committee said that the right to reside in a place of one’s choice within the territory - - -

KIEFEL CJ: Do you have a copy of this?

MR BROADFOOT: Yes, I think we do. That would be General Comment - we are just getting that, your Honour.

KIEFEL CJ: While that is coming, the only case I think that you refer to in your written submissions is a decision of the European Court of Human Rights in Soering v United Kingdom which deals with Article 3 of the European Convention for Protection of Human Rights and Fundamental Freedoms. I think that is the only case upon which you rely in support of this.

MR BROADFOOT: We rely on the concurring opinion in B.L. v Australia.

KIEFEL CJ: Do you have a copy of that?

MR BROADFOOT: Yes. I think that is in our list, your Honour.

KIEFEL CJ: We have it here, thank you. Where do you take us to in relation to B.L.?

MR BROADFOOT: The comparing opinion of Mr Salvioli, page 14, appendix 3, paragraph 4 which reaches the same outcome as the joint reasons, referring to the joint reasons notes that the Committee, in the author’s opinion:

should not have stated that “the author has not put forward any other reason why he could not relocate within Senegal” –

Paragraph 5:

The Committee has never based its decisions on the “internal flight alternative” or “internal relocation alternative doctrines”. It is my understanding that it has not done so in this case either –

and:

The adoption of these doctrines in the course of the Committee’s deliberations would represent a setback –

and, paragraph 7, significantly:

If a person would genuinely be at risk of becoming the victim of violations of article 6 or article 7 of the Covenant if that person were to be expelled or extradited from a State party to another State (whether or not it is a party to the Covenant), the Committee should find a violation regardless of whether or not there are any safer areas within the country to which the victim would be sent.

KIEFEL CJ: That is an assertion.

MR BROADFOOT: Yes.

KIEFEL CJ: What is the reasoning in relation to the text of the covenant there is one individual member of the Committee with whom the other members obviously do not agree - - -

MR BROADFOOT: It is an assertion, your Honour, but we say that it is an assertion that is supported by reading Article 7 harmoniously with Article 12. It is a view that is expressed that is consistent with the obiter of the Full Federal Court in MZYYL, to which I took the Court. It is consistent with the reference in Article 19c to another country, as a matter of text and it is the case, in our submission, that unlike under the Refugee Convention where the internal relocation arises or is distilled from the text one does not readily see such a qualification in the text of the ICCPR or the MOU.

GAGELER J: What is the status of a ruling of the Human Rights Committee in terms of the Vienna Convention? Is it the opinion of jurists? Is it State practice? What do we make of it?

MR BROADFOOT: I am told it is not State practice, your Honour; it is a view. It is a non-binding opinion or recommendation.

GAGELER J: Do the writings of the Human Rights Committee take us any further than their inherently persuasive value?

MR BROADFOOT: No, not in this case. In our submission, the writings of the Human Rights Commission in B.L. are inconsistent with what the Full Federal Court said in MZYYL that an applicant for protection was not required to do.

GAGELER J: I will really only ask just one more time, but is there any international law literature to which you can point where we would find a guide to how you get the non-refoulement obligation out of the terms of the ICCPR?

MR BROADFOOT: It is the General Comment, which we are getting, which is referenced - - -

KIEFEL CJ: Is this General Comment No 27 on Article 12?

MR BROADFOOT: Yes.

KIEFEL CJ: I think you have to be more specific. Our associates are having difficulty working out which General Comment you are referring to.

MR BROADFOOT: I am sorry. I am told it is on Article 7. Mr Albert is getting it.

KIEFEL CJ: So it is General Comment No 20?

MR BROADFOOT: Can I come back to that, your Honour?

KIEFEL CJ: I see your time might be expiring shortly.

MR BROADFOOT: Yes. Your Honour, I just wanted to deal with the case of Sufi and Elmi, upon which the respondent relies.

NETTLE J: Just before you go from this General Comment, does one get out of this that Article 7 implies an obligation not to send someone back if within any part of the territory to which he went he would lose the rights under Article - - -

MR BROADFOOT: No, it does not go that far, your Honour.

NETTLE J: Does it help you at all to that end?

MR BROADFOOT: In response to Justice Gageler’s question about the source of international law and commentary on - - -

KIEFEL CJ: But we still do not know which General Comment you are referring to.

MR BROADFOOT: Sufi and Elmi is a decision of the European Court of Human Rights, which our learned friends rely on, where the court said:

It is a well-established principle that persons will generally not be in need of asylum or subsidiary protection if they could obtain protection by moving elsewhere in their own country.

KIEFEL CJ: Which passage are you referring to?

MR BROADFOOT: Paragraph 35 of the European Court of Human Rights decision. But, of course, that is provided expressly in Article 8 of the European Council directive so, in our submission, that does not assist in assessing content of the obligations owed by Nauru.

GAGELER J: Where do we find Article 8?

MR BROADFOOT: I am not sure that it is set out in the text of that decision but it is in our list, entitled “Internal protection”:

As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin, he or she:

(a) has no well-founded fear of being persecuted -

So it makes it express in the same way as 36(2B) of the Migration Act does.

KIEFEL CJ: What about the case of Januzi that is referred to in paragraph 36 of the Sufi decision?

MR BROADFOOT: Januzi is also the case referred to by the High Court in SZATD.

KIEFEL CJ: Is it dealing with the International Covenant on - - -

MR BROADFOOT: No, it is dealing with the Refugees Convention and that is the - - -

KIEFEL CJ: The European Court of Human Rights seems to be referring to it as stating a general proposition in relation to international protection.

MR BROADFOOT: Well, one might have regard in that context to the fact that in the European treaties there is an express internal relocation qualification.

KIEFEL CJ: Article 3 of the European Convention is in almost the same terms as Article 7.

MR BROADFOOT: Yes, it is.

KIEFEL CJ: Is that what it is referring to?

MR BROADFOOT: In Januzi?

KIEFEL CJ: Januzi, or is it, as you say, the Refugees Convention?

MR BROADFOOT: Well, Januzi is dealing with the Refugees Convention and the House of Lords deal with internal - - -

KIEFEL CJ: In any event, what I am really asking you is whether or not the European Court of Human Rights in Sufi is referring to a well-established principle applicable generally in international law.

MR BROADFOOT: It is couched in those terms, your Honour, but there is no reasoning for it and it is in the context of a Convention that provides expressly for an internal relocation analysis in Article 8.

GAGELER J: Well, it is Article 8 of the directive. The directive is designed to give effect to Articles 2 and 3 of the Convention.

MR BROADFOOT: Yes.

KIEFEL CJ: And Article 3 is in the same terms as Article 7 of the Convention with which we are concerned.

MR BROADFOOT: Yes, and it was not argued that that right under Article 3 needs to be considered at the same time as the freedom of movement article, which is the argument upon which we rely in this case. If the Court pleases, those are our submissions. In response to Justice Gageler’s question earlier, I am told that it is General Comment Article 31 that deals with Article 2 of the ICCPR. Article 2 is the article that refers to the other articles.

GAGELER J: Thank you. Do we have that?

MR BROADFOOT: I do not have it here, your Honour. We will get it.

KIEFEL CJ: It is not General Comment number 31, General Comment No. 31 [80], “The Nature of the General Legal Obligation Imposed on State Parties to the Covenant”. Is that the document?

MR BROADFOOT: Yes, that is the one to which we were referring.

KIEFEL CJ: Which part of it do you wish to refer us to?

MR BROADFOOT: Paragraph 12,your Honour, but I can check that, with the Court’s permission, and come back to it. If the Court pleases.

KIEFEL CJ: Yes, thank you. Yes, Ms Harris.

MS HARRIS: Your Honour, I will attempt to address some of the issues that were raised with Mr Broadfoot in the course of his submissions. If I can first turn to a question posed by Justice Gageler about whether there is any exposition about the international law basis on which Articles 6 and 7 of the ICCPR, among other instruments, give rise to non-refoulement obligations. Perhaps, the best authority there is before the Court today is Kindler v Canada and that is in the respondent’s authorities. In that case, at paragraph 6.2, the committee acknowledges Article 2 of the covenant and says, relevantly, if I might read from that:

Article 2 of the Covenant requires States parties to guarantee the rights of persons within their jurisdiction. If a person is lawfully expelled or extradited, the State party concerned will not generally have responsibility under the Covenant for any violations of that person’s rights that may later occur in the other jurisdiction. In that sense a State party clearly is not required to guarantee the rights of persons within another jurisdiction. However, if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person’s rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant. That follows from the fact that a State party’s duty under article 2 of the Covenant would be negated by the handing over of a person to another State –

and this is in the context of extradition, your Honours, I interpose, but the same would follow with a refoulement:

(whether a State party to the Covenant or not) where treatment contrary to the Covenant is certain or is the very purpose of the handing over. For example, a State party would itself be in violation of the Covenant if it handed over a person to another State in circumstances in which it was foreseeable that torture would take place. The foreseeability of the consequence would mean that there was a present violation by the State party, even though the consequence would not occur until later on.

So, that is a theoretical framework for interpreting those obligations as giving rise to a non-refoulement obligation. And, this Court – we do not have this authority with us today but in the case of SZATL – which is cited at footnote 45 of our written submissions with some paragraphs identified – has referred to those international law obligations that arise from Articles 6 and 7 but without going into the international law analysis.

KIEFEL CJ: But neither of them deal specifically with the international relocation concept in the context of refoulement.

MS HARRIS: No, your Honour. That case, Kindler v Canada, goes only to - - -

KIEFEL CJ: It takes you that far but no further.

MS HARRIS: - - - the conceptual foundation for non-refoulement.

KIEFEL CJ: Yes.

MS HARRIS: We do need to take it one step further. The relationship that we rely on with Article 12 is that when one considers the non-refoulement obligation that is implied from Articles 6 and 7, one must, consistent with the Vienna Convention on the Law of Treaties, interpret those two articles in the context of the ICCPR as a whole. That arises from the Vienna Convention, Article 31.1. We do have that in our authorities; I do not need your Honours to look at it. The obligation is to interpret treaty conventions:

in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

GAGELER J: So if we take the logic of paragraph 6.2 that you have just read to us, the question that would arise under Article 2 in respect of Article 7 would be: is it a foreseeable consequence of refoulement that the individual now in Nauru would, in Pakistan or wherever, be subjected to torture or cruel or inhuman treatment? Is that right?

MS HARRIS: Yes, your Honour. That is the analysis.

GAGELER J: Yes. So that is really a factual analysis which one sees in the European Court of Human Rights analysis.

MS HARRIS: Yes.

GAGELER J: But how then does Article 12 make a difference to that essentially factual analysis?

MS HARRIS: When Articles 6 and 7 are interpreted, they must be interpreted both by reference to Article 2, which talks about rights within the territory of the State, not parts of that territory, and it must be interpreted in light of the other substantive obligations in the ICCPR, which will include the freedom of movement right in Article 12. If I can assist the Court, in our submissions there is General Comment 27 of the United Nations Human Rights Committee. That is with item 32 of our authorities. The General Committee at paragraph 5 of this comment, which deals with the operation of Article 12 and the freedom of movement generally, says:

The right to move freely relates to the whole territory of a State, including all parts of federal States. According to article 12, paragraph 1, persons are entitled to move from one place to another, and to establish themselves in a place of their choice. The enjoyment of this right must not be made dependent on any particular purpose or reason for the person wanting to move or to stay in a place. Any restrictions must be in conformity with paragraph 3 -

which talks about according to law and for reasons of public health and safety and so on.

KIEFEL CJ: How do we identify the right that Article 12 was referring to for the purposes of your argument? Is it his right not to be in the Punjab because he chooses not to be there? It certainly would not be his right to be in Karachi because he definitely does not want to be there. So how would you - - -

MS HARRIS: According to international jurisprudence, it is his right to be in the State in a place of his choosing.

KIEFEL CJ: Anywhere he chooses in the State - and he chooses not to be in the Punjab. Is that how it plays out?

MS HARRIS: In actual fact it would play out - in our case he has made a case that it is just not reasonable or practicable for him to be in the Punjab and we have a separate ground of appeal going to that.

KIEFEL CJ: Yes. But it is his right to – it would not be his choice to be in the Punjab, therefore he cannot be returned there. That is how it works.

MS HARRIS: Yes, your Honour, Article 12.1 talks about liberty of movement and freedom to choose his residence. It could not really be broader in its terminology and - - -

NETTLE J: But returning him to the country would not deny him the right to choose where he went within it, would it?

MS HARRIS: Well, your Honour, in a factual scenario where the Tribunal has found that should he return to his place of residence – in our case, Peshawar – there is a real risk that he will be subjected to harm. In his case it was attempts on his life and assaults. It is sending him back in circumstances where it is quite foreseeable that it will curtail Article 12.

NETTLE J: But if he chose to move elsewhere, it would not be foreseeable. He is free to choose wherever he goes, on the evidence; lawfully free.

MS HARRIS: Putting aside Peshawar, where we say he is not free there, and putting aside the separate question of reasonable and practicable relocation, he would be legally free, but as a matter of fact it is foreseeable to this Tribunal that not only would return to the State potentially involve a breach of Articles 6 and 7, but a person enjoying their Articles 6 and 7 rights, or it is perhaps more apt to talk about their Article 7 right to be free from that prohibited treatment, a person enjoying that right and their Article 12 right, it is foreseeable that their rights would be breached by Article 6, because you cannot read Article 6 in the context of the Convention and in light of its purposes to - - -

KIEFEL CJ: Is that because what you are talking about is a right to be able to choose anywhere in the State as your residence, so that if you remove one place in the State, your choice is affected and Article 12 is engaged? Is that how you are reading it?

MS HARRIS: Yes, your Honour, excuse me for interrupting, yes, and that you have accepted that your Article 12 right will not be able to be enjoyed by that person if returned to the State. So it operates in two ways, if you like. The Articles 6 and 7 non-refoulement obligation cannot be read to apply only if you return to the State on the basis of not enjoying some of your rights, because that would be entirely inconsistent with international law.

KIEFEL CJ: You have to have your rights extend to locating yourself anywhere in the State so that, if anywhere is not safe, you cannot be returned there.

MS HARRIS: Because that is what the ICCPR guarantees a person, when the rights are read as a harmonious whole. That is our contention.

GAGELER J: I may have misunderstood your argument but would you say that there is a non-refoulement obligation that arises out of Article 2 read with Article 12?

MS HARRIS: Your Honour, I could not refer the Court to any authority that would support that argument. The same reasoning may well apply, but I cannot refer the Court to authority that has considered that position. But, in our respectful submission, we do not need to go there because as soon as Article 6 or Article 7 is engaged, it brings with it the context of the Tribunal as a whole and one must understand the right in Article 7 to be a right to freedom from torture or cruel, inhuman and degrading punishment anywhere in the State because of Article 2, without impairment on the movement of that person because of Article 12.

Your Honours, in the brief amount of time remaining, in relation to sources of international law and the status of committee comments – again, we do not have this here – but Professor Crawford has a comment that is on the United Nations website about sources of law, referring back to Article 38 of the statute of the International Court of Justice, where he acknowledges that possibly that is no longer an exhaustive statement, those defined sources of law, but that it is clear that committee views are influential, partly because they could be State practice because there are representatives of individual States that contribute their members to the committees or it could be the views of respected jurists. Either way, in international law, those committee opinions certainly are given some substantial weight in understanding the content of international law.

GAGELER J: So Professor Crawford’s note is the best advice, is it?

MS HARRIS: Your Honour, it is an abbreviated note that I was reading on this point yesterday. We can hand it up to the Court but it is an abbreviated note made available for the United Nations.

GAGELER J: I should say Justice Crawford.

MS HARRIS: My apologies. Justice Crawford - I should be saying that. It is certainly not expressed in the context of his judicial appointment, though. It was something written - he did not hold that. Your Honours, I think those are the only points that I wish to address and my time is probably up, but if there are any questions - - -

KIEFEL CJ: Yes, thank you, Ms Harris. Mr Burnside.

MR BURNSIDE: If the Court please. The international obligations on Nauru include its obligations as a State party to the International Covenant on Civil and Political Rights. That includes Article 7 and Article 12 and it is not possible – if a person is to be returned to a place where part of the country is safe and part is not – it is not possible to preserve both rights. If the ICCPR is concerned with protecting rights, then it does not permit any dilution.

The General Comment, which was the subject of discussion earlier, that the Court should see is General Comment No 20 – in particular, paragraphs 3 and 9. This General Comment is specifically concerning Article7 of the ICCPR. Paragraph 3:

The text of article 7 allows of no limitation. The Committee also reaffirms that, even in situations of public emergency such as those referred to in article 4 of the Covenant, no derogation from the provision of article 7 is allowed and its provisions must remain in force. The Committee likewise observes that no justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reasons –

Then, Article 9 – sorry, paragraph 9:

In the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement. States parties should indicate in their reports what measures they have adopted to that end.

If the obligations of Nauru under the ICCPR are to be respected, then it is essential not only that a person not be sent back to their country of origin at the risk that they will be treated in a way that infringes Article 7, and also that they be free to choose where they live. Freedom to choose where they live is very easy to sideline it saying Karachi is the one place you would not want to choose because that would be silly. How far does that go? If all but one village in a country is unsafe, does it follow that the person can be returned as long as they choose to live in that village? In our submission, the obligations on State parties – it is the ICCPR - - -

KIEFEL CJ: In that circumstance, it would be – the internal relocation test would not be satisfied.

MR BURNSIDE: It is not about internal relocation. The question really at the moment is, is the internal relocation test applicable where the question is complementary protection as distinct - - -

KIEFEL CJ: I realise that, Mr Burnside.

MR BURNSIDE: Yes. We submit that it is clear that internal relocation as a way out under the Refugees Convention is not available – not in terms, not by implication available under the ICCPR. That is why a reductio ad absurdum to saying there is one safe place where you could be relocated to if refugee status is in question, that logic does not apply to save a country if it chooses to refoule someone to a country as a matter of complementary protection.

The other aspect about the right to choose your place of residence in Article 12 of the ICCPR is that it overlooks altogether the inherent dangers of internal travel in a country where a person is otherwise at risk. They may be returned to the frontiers of a country, and then they have to get to the place that is regarded as safe. To do that is to expose them to the risks against which Article 7 of the ICCPR is supposed to protect.

NETTLE J: That would be a factual question, would it not?

MR BURNSIDE: It would be a factual question, and it is a factual question which has a good deal in common with the internal relocation questions which we will deal with tomorrow in EMP144, but in our submission - - -

NETTLE J: In this case, just assuming, as it were, against you for the moment that the findings went as far as establishing that it is reasonably practicable to relocate, and thus presumably implicitly there is not a sufficient risk of relocating to make that not be so, the point would not be applicable, would it?

MR BURNSIDE: I do not know whether I fully get the burden of the question.

NETTLE J: If it has been found, upon a correct understanding of the Tribunal’s findings, that it is reasonable for this man to relocate within the country - - -

MR BURNSIDE: To relocate to where in the country?

NETTLE J: Some other place than that where he is said to be subject to the loss of his Article 7 rights. Is it not implicit in that that he will not be exposed to danger and so relocate him?

MR BURNSIDE: Only if there is an express finding to that effect.

NETTLE J: I see.

MR BURNSIDE: Taking the circumstance of EMP144, for example, as a Hazara man ostensibly about to be removed to Afghanistan, it is clear that it is very dangerous for a Hazara to travel from Kabul to the Hazarajad. In the Hazarajad it is possible that he would be safe, but the travel involved between the place that he is removed to and the place where he is safe is itself a very dangerous thing. This is really a question for tomorrow, because the Tribunal simply did not consider these things.

I have been handed copies of General Comment No 31, which I think the Court did not have, in response to Justice Gageler’s question.

GAGELER J: Somehow it has emerged.

MR BURNSIDE: You have got it. If other members of the Court need it, I now have copies of it. Specifically, your Honour should look at paragraph 12.

GAGELER J: It is cast in unqualified terms, relevantly.

MR BURNSIDE: Yes, it is.

GAGELER J: What do we make of the General Comment being in 2004 and then we have the later ruling, to which we have been taken, which does introduce the qualification? How do we read them? Together? One supersedes the other? They have different levels?

MR BURNSIDE: No, I would say in conjunction with General Comment 31, have a look at the paragraphs of General Comment 20 that I read. General Comment 20 specifically concerning Article 7 makes it very clear that it is absolute in its terms and nothing in the later General Comment deals with the problem how do you protect rights under Article 7 and under Article 12 simultaneously, if there is a qualification on the - - -

GAGELER J: Sorry, what I was really meaning to say was that we have several different sorts of documents emanating from the Human Rights Committee. You have taken us to general comments and we have also been referred to a communication in 2014 of an adjudicatory nature. How do we reconcile those documents, in your submission?

MR BURNSIDE: The general comments should be regarded as more carefully considered than an adjudicatory comment, and I am conscious of saying that in the High Court of Australia, but it is unfamiliar territory and difficult legally. But we would say the General Comment should carry the day because the General Comment by their nature are general; they have general application. An adjudicatory - - -

KIEFEL CJ: They are adopted at meetings. Is that meetings of the whole of the committee?

MR BURNSIDE: Yes. Now, I am not sure whether any other members of the Court need copies of General Comment 31, but I have them here.

KIEFEL CJ: No, we have them.

MR BURNSIDE: You have them? Good.

NETTLE J: Mr Burnside, I apologise for the ignorance of this question, but what part of international law gives these General Comments, as it were, binding or persuasive force?

MR BURNSIDE: I cannot answer that. I will have to try and give you an answer in the course of my reply if I get to that.

NETTLE J: All right, thank you, that would be helpful.

MR BURNSIDE: Unless there are other matters that the Court wants me to deal with, I am conscious of the time limits. If the Court pleases.

KIEFEL CJ: Yes, thank you, Mr Burnside. Yes, Mr Kennett.

MR KENNETT: It is an obvious point, but if one begins with the text of the ICCPR, one does not see a non-refoulement obligation. The existence of such an obligation, so my client accepts, is shown by the jurisprudence, if I could put it that way, of the Human Rights Committee, and it is upon that jurisprudence that one needs to focus initially.

In terms of the role of the committee and the status of its determinations, can I commend to your Honours without taking you to it the discussion by Justice Perram in Minister for Immigration v Anochie [2012] FCA 1440; (2012) 209 FCR 497 from about paragraph 40 to paragraph 50. His Honour I think comes to the view that what the committee says is learning of a kind to which regard may be had under Article 32 of the Vienna Convention on the Law of Treaties.

It is more difficult I think to get it within Article 31 because the sources which form part of the context in Article 31, at least on the face of it, seem to be limited to things which show agreement of the States Party and I think it may be a bit of a stretch to say that all States Parties always agree with everything that the Human Rights Committee says. But it is at least relevant under Article 32 as the statements of a learned body which has responsibility for monitoring and commenting on compliance with the treaty, and we have accepted in the written submissions that insofar as the committee postulates a non-refoulement obligation arising from a combination of Article 2 and Article 6 and 7, that is to be accepted.

A useful statement of the basis for it is in paragraph 12 of General Comment 31, to which your Honours have been taken. A more refined and directed and, we say, if necessary a statement which would, to the extent that it is inconsistent, displace the General Comment is to be found in Kindler, at paragraph 6.2, to which your Honours have also been taken.

It is in Kindler that we see the notion of irreparable harm being a necessary and foreseeable consequence of somebody being returned to another country and that, with respect, is a natural development given the nature of the postulated obligation. It must focus on the consequences of return and not on speculation about what might or might not happen and the consequence of decisions that the returnee might or might not make having been returned.

It is something that operates at the level of States Party and contemplates return to the frontiers of State X, rather than someone being required or expected to go to live in a particular place in State X where they might be at risk.

It is easy to see why the committee has adopted formulations of its principle which involve the risk of irreparable harm and Articles 6 and 7 are always mentioned as the species of harm which are in contemplation. I am not aware of any case having applied the principle to other breaches of other articles of the ICCPR but the committee, since Kindler, has fairly consistently referred to “necessary and foreseeable consequence” or some equivalent language as part of the concept.

In that connection, again can I commend to you, without taking you to it, a passage of Justice Perram’s analysis in Anochie, paragraphs 59 to 67. His Honour was taken in that case through a large number of views of the committee and was asked to try to distil a stable principle from those views.

One thing his Honour does note is that the reference to “necessary or foreseeable consequence” is quite consistent throughout that body of decision-making. Where the committee seems to have landed is that what needs to be a necessary and foreseeable consequence is a risk, rather than actual harm. So the applicant does not need to show 100 per cent likelihood of being harmed but there is still, as part of the committee’s principle, a notion that whatever the level of risk is, it is a level of risk which has to arise necessarily as a consequence of refoulement.

That part of the analysis, we say, is not present if, on the facts, there is a place in the country of return that the returnee can safely get to and live in without encountering that real risk of irreparable harm and, if it is reasonable, to expect the person to relocate to that place. That is the consequence that we take from the way the committee has expressed the non-refoulement principle.

NETTLE J: Principally, in paragraph 6.2?

MR KENNETT: Yes, your Honour.

NETTLE J: That is where you get this idea from?

MR KENNETT: That is where we get it from?

NETTLE J: Is that the highest and best at manifestation of the principle, as it were?

MR KENNETT: Yes and no. It is the general statement of principle upon which we rely.

NETTLE J: Yes.

MR KENNETT: And, we would, unsurprisingly – contrary to Mr Burnside – privilege that over the general statement in the General Comment because it is something made in response to an actual problem. But, that is where we go for a statement of the nature of the doctrine.

NETTLE J: Amongst the available materials, this is the most precise exposition of the principle?

MR KENNETT: It is the most precise exposition of those which we have put before your Honours. There is a legion of other cases which say similar things and we have not given those to your Honours. We are content to rely on Kindler.

NETTLE J: Yes.

MR KENNETT: We also rely, of course, on BL – which I am coming to – where the committee applied its doctrine to the specific problem of – or the specific question – of internal flight.

NETTLE J: Thank you.

GAGELER J: I think you make this point in your written submissions, but the analysis, then, is somewhat different from the analysis that has found favour in this Court and I think in the House of Lords in relation to the Refugee Convention.

MR KENNETT: It is for textual reasons. I was going to come to this later but - - -

GAGELER J: Do not let me detain you.

MR KENNETT: I will not take long to get there. I just wanted to note – as we say in paragraph 3 of our outline – the condition that there be a necessary and foreseeable – or risk arising as a necessary and foreseeable consequence is not met if there is a safe place of internal flight within the proposed country of return. That is a proposition that is consistent, at least, with what the committee decided in BL – which was on our list of authorities and I hope your Honours have it. I think reference has already been made to one of the concurring opinions.

Can I take your Honours to a couple of other passages in that decision? If I could just perhaps note first, there is a footnote on the first page which records who the members of the committee were who participated in the consideration. I think we counted them for the purpose of our written submissions and got 14 members, at any rate, a reasonably large body. The committee’s views, perhaps analogous to the opinion of a court, then start at 1.1 and go through to paragraph 8 and I wanted to note what the committee says firstly in paragraph 7.3 where it recalls General Comment 31. Then in 7.4 notes some features of the case before it and this was a case that came from Australia and followed on from a decision of the Refugee Review Tribunal. The committee notes:

that any threat to the author came from his family and their associates . . . it rejected the author’s contention that no adequate and effective State protection would be available to him elsewhere in Senegal. The Committee also notes that the author has not put forward any other reason why he could not relocate within Senegal.

Then, at the end of the same paragraph the committee says:

Provided that the author would only be returned to such a location where the State party determines that adequate and effective protection is available, the Committee cannot conclude that removing him to Senegal would violate the State party’s obligations under article 6 or 7 of the Covenant.

It thus states its overall conclusion at paragraph 8. Also interesting are two of the concurring opinions which appear in Appendices. First there is the concurring opinion of two members in Appendix I who say:

We concur fully with the Committee’s Views. We write separately merely to point out that the Committee’s discussion in paragraph 7.4 reflects the well-established principle of the “internal flight alternative”, a basic rule of international refugee law as well as international human rights law.

They explain why that is a principle and they refer to some earlier cases. In Appendix II one member takes issue with the stipulation at the end of paragraph 7.4 that I read out to your Honours and regards that as unfortunate language and says:

The duty of ascertaining the location where adequate and effective protection is available in Senegal does not rest upon the authorities of the State party (Australia). Their duty is limited to obtaining reliable information –

and so forth. So that is B.L. and that is where the committee, which is the author of the principle that we are discussing, finds fairly clearly, we say, that an internal flight alternative is an aspect of that principle in the manner that we have suggested. It also reflects what we say is a broader understanding applicable to human rights instruments.

I was going to take your Honours to paragraph 35 of Sufi and Elmi. Your Honours have already been there so there is need to get that out again. We would note that, as your Honour the Chief Justice mentioned, reference is made there to Januzi’s Case, which is a case about the Refugees Convention and a case whose analysis was endorsed by this Court in SZATV. What one can see from SZATV, to which your Honours have been taken, is that this Court preferred a textual route in the Refugees Convention as the basis for the existence of an internal flight principle.

In that context, we would note, though – and this Court has on that and other occasions refrained from adopting overarching notions of surrogate protection and notions of that kind – there was a passage in Khawar, which is not on the list of authorities but it is in 210 CLR. There was some discussion there which rather discounts the use of surrogacy theories – that is paragraph 73 – and prefers to look at the text.

That is, of course, orthodox, but we would say that part of what informs that approach to the text, part of what informs Lord Hope’s construction in Januzi, which this Court embraced in SZATV, is the context of what these instruments are in the way they operate. They operate as between States and at the level of States and they contemplate refoulement as sending somebody from a State to another State, require judgments to be made at the level of States.

If protection, to use that word very loosely, is available in the person’s home State, one will find under the Refugees Convention and also under the instruments considered in Sufi and Elmi and also under the ICCPR, we would say, that refoulement to that country is not an act which of itself exposes the person to the kind of risk that results in a breach.

I think I said earlier, return in this context is contemplated at the international law level as return to the frontiers of a country rather than return to a particular place within it and - - -

GAGELER J: I am sorry - - -

MR KENNETT: I am sorry, I was just going to note in the same vein, the first of the concurring opinions in B.L. to which I took your Honours a minute ago also speaks of a general principle that is part of the understanding of other instruments as well as the ICCPR. So we do not apply the Refugees Convention cases directly but we say that they show a consistent approach to instruments of this kind.

GAGELER J: My question relates to Article 12 of the ICCPR. It has a reference of course to a State, perhaps as distinct from a State party, I do not know. Are you aware of any international law analysis of whether one State has an obligation to ensure freedom of movement of an individual in another State?

MR KENNETT: I am not. I must say I have not studied Article 12 specifically.

GAGELER J: I raise it because it seems to be the argument put against you.

MR KENNETT: Yes, I can make a number of general points about the reliance on Article 12. Firstly, it does not seem to be suggested by our friends that deprivation of freedom of free movement is itself a breach of Article 7 and that would be an unlikely construction because the two articles are there and each stands on its own. The non-refoulement principle, certainly to our knowledge, has not been taken and certainly not taken with any degree of consensus beyond potential breaches of Articles 6 and 7. They are the heartland of irreparable harm to which the committee referred.

We are certainly not aware of any case where a potential breach of Article 12 formed the basis for a non-refoulement obligation. So it is not clear to us, with respect, how Article 12 helps particularly in the light of two other points which is firstly, we have not been taken to any learning as to whether Article 12 is infringed by acts of non-State actors which is what these cases concern.

So that if a particular in a particular country is unsafe because of drug gangs or political thugs; unsafe, so that it is not sensible for a person to go there, it is not clear to us that that involves a breach by the authorities of that nation of Article 12 or by that nation of article 12. Now, there may be a case that says that but I do not know of it. But that is a hurdle that I think needs to be overcome if Article 12 is to begin to form part of this discussion.

Further, and I think your Honours are alive to this from questions that your Honour the Chief Justice asked, non-refoulement by Nauru, that is allowing these appellants to stay in the territory of Nauru, does not do anything to protect them against breaches of Article 12 in Pakistan. It does not secure their free movement in that country for obvious reasons. It does secure their freedom assuming they face a risk of torture or death, or cruel or inhuman treatment. Staying in Nauru protects them against that and that is the clue, I suppose, as to why the committee has adopted the principles that it has adopted.

For them to be allowed to stay in Nauru does nothing for their freedom of movement in Pakistan. So non-refoulement is not a sensible protection against the considerations of freedom of movement. So Article 12, which I took to be recruited as an aid to reading Article 7 but may have been intended to do more, we say does not assist in defining the scope of the non-refoulement obligation.

I wanted to make one final point about the construction of the principle – it is not a construction of a piece of text – the construction of the implication, I suppose I should say, for which our friends contend, which is that the logic of it must be that, if there is a risk of harm in part of the country of return, one province or one city, a non-refoulement obligation arises.

That seems to us to be how it needs to be stated and I think is stated in the written submissions. What would follow from that is that there would be no principal reason why that place of danger has to be somewhere that the person concerned has ever been or ever might go.

If this is operating at the level of principle in the way that our friends set it out, it must mean that if in country X there is an example I postulated earlier of a city ruled by drug gangs where sensible people generally do not go, the applicant for protected status may have never been to that city and may have no intention of ever going there.

But on the logic of our friend’s construction, the existence of that dangerous town would mean that he or she could not be returned to their country of origin and that is obviously an extremely unlikely result and one that does not chime with the approach that has been taken to any of these human rights instruments. It is one that suggests that the non-refoulement principle in the ICCPR needs to be understood in the way that we have outlined.

The final matter, your Honours is – it is not in my outline but I was reminded, when my learned friend began this morning, of Article 19(c) of the MOU, which can also be conceived as an international obligation of Nauru - that was not, as we understood it, put by our fiends as going beyond the ICCPR and we would certainly say that if one reads that in the context of the MOU it is in substance an assurance given to Australia that Nauru will abide by the earlier instruments, including the ICCPR.

So we would submit that it should not be read as adding a further and freestanding obligation which would be understood differently to that in the ICCPR insofar as application of an internal flight principle is concerned. Your Honours, those are the Republic’s submissions in the two matters in which I appear on the common issue.

KIEFEL CJ: Mr Aleksov, do you have anything to add?

MR ALEKSOV: No, your Honour, we adopt the submissions of Mr Kennett in EMP144.

KIEFEL CJ: Are there any submissions in reply?

MS HARRIS: Your Honours, if I could first address one point. It was not his Honour Justice Crawford; it was in fact Professor Greenwood who authored the note that is made available on the UN website. I will provide it to the Court, but it only enlightens by identifying that Article 38 of the statute of the International Court of Justice is no longer thought of as the exhaustive statement of international law and that potentially a broad view of State practice might encompass statements of, for example, the UN Human Rights Committee in general comments or in their statements or views on particular cases.

GAGELER J: Do you disagree with Justice Perram’s analysis to which we were referred?

MS HARRIS: In Anochie? Your Honour, our submission is that that is in a quite different context and it really does not enlighten the position in international law and of course we are looking at Nauru’s adoption as a matter of domestic law of obligations under international law.

GAGELER J: We are construing the international law obligations directly, yes.

MS HARRIS: We are construing the international position by reason of the obligation undertaken not to return a person to their borders in contravention of its international obligations. It is the international law that this Court has the task of – the Supreme Court of Nauru have the task of applying and this Court has the task of applying and it is our respectful submission that Justice Perram’s observations in Anochie as noted in our written reply does not really address this point.

GAGELER J: I think it is Justice Greenwood.

MS HARRIS: I am not having much luck on that point, your Honour.

GAGELER J: Will you give us a precise reference to that, please?

MS HARRIS: I will, your Honour. We can arrange to have that short document handed up in the internet address. Your Honour, we need to clarify that we do not say that Article 12 of itself or in combination with Article 2 gives rise to a non-refoulement obligation – that the risk of a restriction on freedom of movement alone would engage a non-refoulement obligation.

The way we put it is based on Articles 6 and 7, but that those articles must be read together and that it is an illusory protection of those articles in the ICCPR if a tribunal was to find that – if you go back and give up your right under Article 7, there is no risk of a real chance or foreseeable harm of contravention of Articles 6 and 7. That is the way we put it. We do not put it as a freestanding basis on which there is any international law principle established at this time that would say one cannot return a person to the borders of that territory.

NETTLE J: Cannot return the person to the border if there is any place within the border in which he or she might be subjected to breach of Article 6 or 7 protection.

MS HARRIS: That is the way we put it, your Honour, not that, if it was foreseeable that a person might go back to the State and there was some restriction on their movement – but not a contravention of Article 6 or 7 – that would be enough. We do not say that that principle is established by international law.

NETTLE J: But it is enough to invoke the protection you say if it is foreseeable that if the man were returned to the border and chose once there to go to a particular place within the border, he would be subject to the risk of breach of Article 7?

MS HARRIS: That is the proposition that we put forward, your Honour, yes.

NETTLE J: So you accept Mr Kennett’s proposition that it amounts to saying a non-refoulement obligation would apply to a subject if he or she would be at risk at some point within a territory even if they had never been to that point and did not contemplate within the relevantly near future going there?

MS HARRIS: Your Honour, all of these cases start from the premise that there has been acceptance that a person within the State, which is the geographical and legal unit that the ICCPR talks about, there is a real risk of harm which would amount to contravention of Article 7 and in some cases Article 6. That is the starting point.

NETTLE J: Yes, I see. So it is not just theoretical?

MS HARRIS: It is not a theoretical; that has been accepted. So that is the premise and it has been accepted that absent an internal relocation principle the non-refoulement obligation would attach. It is really a matter of whether it is possible, conformable with the principles applicable to treaties such as the Vienna Convention on the Law of Treaties, to say we will read that Article 6 and 7 implied non-refoulement obligation isolated from the fact that the same person who enjoys those rights is entitled to each one of the other rights but we will read it on the basis that they do not, in this circumstance, get to enjoy that right of freedom of movement. That is the way we put it.

It comes back, your Honour, to the fact that in international law the internal relocation principle has been firmly grounded in cases like Januzi and in jurisprudence of this Court in textual indications in the Refugees Convention, in the causative condition of owing to a well-founded fear of persecution. It has not been in reference to any broader concept of what is regarded as appropriate. It has been firmly fixed back to that textual indication. We do not understand the Republic to identify any particular textual indication in the ICCPR which would require this Court to come to that same conclusion.

So, looking, as we must, at the text of the Convention in the full context of the relevant articles and in light of its purposes, our position is that there is simply no identified foundation for an internal relocation test.

KIEFEL CJ: There is a textual reference really in the Republic of Nauru’s submissions, is there not? In paragraph 18 of the written submissions it is said that if the relevant harm can reasonably be avoided by internal relocation the risk of harm cannot be said to be a necessary consequence of return to the country in question.

MS HARRIS: My apologies, your Honour. Could you refer me to that paragraph?

KIEFEL CJ: Paragraph 18.

MS HARRIS: It may be in submissions that I was not served with in my - - -

KIEFEL CJ: I am sorry, they are in the CRI submissions.

MS HARRIS: Yes.

KIEFEL CJ: You need not respond to it; it has been dealt with.

MS HARRIS: Yes. We note the emphasis that has been placed on “necessary and foreseeable consequences”.

KIEFEL CJ: Yes. That is the jurisprudence rather than the text of Article 7.

MS HARRIS: That is absolutely right, your Honour. We have made the observation in our reply submissions that the Human Rights General Committee General Comment 31 does not use that language at all. Then, where it does arise in Kindler, it is talking about what are the necessary and foreseeable consequences of return. In these cases, that has been satisfied really because the other point we make in our submission is that real risk has been equated with “necessary and foreseeable consequences”.

In footnote 6 of our reply we refer to an authority, ARJ v Australia. Unfortunately, we have not reproduced that or asked for it to be reproduced for the Court, but it makes it clear that “necessary and foreseeable” is not importing some new and onerous superimposed idea on the complementary protection regime or the ICCPR obligations.

It is really another way of saying as a consequence of the action taken in this State of returning that person to the borders, is there a real risk that they will be subjected to harm? In each one of these cases, if the Court takes as a starting point that the complementary protection obligations are engaged at that point, that is satisfied, certainly in the case in which I represent the applicant and in each of the other cases. There has already

been this finding that there is a real risk and it is only the question of internal relocation that would take the person outside of the complementary protection regime.

Given, your Honours, the fundamental nature of the protections conferred by the ICCPR which Nauru has voluntarily undertaken in its own domestic legislation to respect – in terms, not in terms that have been adapted in some way as they have been in some ways in Australia, but in terms it would be surprising to come to a conclusion that there is some internal relocation obligation or principle applicable without identifying any real textual foundation in the ICCPR itself of that conclusion.

KIEFEL CJ: Are you proceeding then with your submissions on the other grounds in DWN?

MS HARRIS: Yes, your Honour. I might need two minutes to reorganise myself, if that is - - -

KIEFEL CJ: Yes, of course.

MS HARRIS: Your Honour, or one minute.

KIEFEL CJ: Did you wish to say something in reply, Mr Burnside? I am sorry, I thought Ms Harris was speaking for all of you.

MR BURNSIDE: Thank you, I understand. I will be very brief. We would say in response to what Nauru has argued that the International Covenant on Civil and Political Rights confers rights and freedoms and in that respect is very different from the Refugees Convention which imposes obligations not to do certain things in particular circumstances and it is the identification of the circumstances, especially Article 1A, which introduces the textual inference that protection is not available if internal relocation is available, in other words, the obligation not to send a person back is suspended in the circumstance that internal relocation is rationally available when it has been properly found.

Article 2 of the International Covenant is obviously important, and I referred to it before. Articles 7 and 12 operate - interestingly, if you contemplate return to a place where it is accepted that mistreatment of the relevant kind is possible in some part of the territory, then it is not possible to be true to Article 7 and Article 12 simultaneously and, as Justice Nettle pointed out, it is a fact-specific question whether there is only one place that you would be at risk or half a dozen places where you would be at risk or maybe 99 per cent of places where you would be at risk.

All of those are matters which would be relevant if it were thought that you can derogate from the Article 12 right whilst honouring the Article 7 right. But, in our submission, the text of the Convention and the importance of it and the observations in General Comment 20 and of course paragraph 12 of General Comment 31 make it very clear that the obligations under the International Covenant or the rights conferred by the International Covenant ought to be treated seriously.

We would say that in order to honour the obligation or the rights conferred by Article 7, it would be necessary, in the circumstances of these cases, to dishonour the right or to diminish the right given by Article 12. And, there is nothing in the text which permits that approach.

GAGELER J: So, does the right encompass a corresponding obligation?

MR BURNSIDE: Probably not. Article 2 begins with the observation that:

Each State Party . . . undertakes to respect and to ensure to all individuals within its territory . . . the rights recognized in the present Covenant –

Article 7:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

In what way does that impose an obligation on a person?

GAGELER J: I am concerned with Article 12.

MR BURNSIDE: Article 12:

Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

I take it, your Honour, that the point of your question is, does that impose on that person an obligation to look out for the places where they might be at risk?

GAGELER J: No.

MR BURNSIDE: And, I would say the answer is, no.

GAGELER J: No. But, that is not really my concern. It just seems to me to be a big call to say that, in this case, Nauru has an international obligation to ensure freedom of movement in Pakistan. I do not see any hint of that in any of the international materials to which we have been taken today.

MR BURNSIDE: I understand that and, with respect, I agree. However, if Nauru decides to send a person back to a place where they are at risk of breach of Article 7 in some part of the territory, we would say that, in order to honour their obligations under Article 12, they cannot send them to a place where the person will not have the right to choose where they live because that right is diminished by the risk which they want to avoid.

It is really parallel with the refugee cases that are concerned with the proposition that, as long as you keep yourself hidden or keep your views to yourself, you will be safe; you will not be persecuted. The courts are very clear on the proposition that you are not obliged to hide your views or yourself in order to be safe from persecution.

We would say by similar reasoning a person is not obliged to restrict their choice of places to live or their choice of address in order to avoid infringement of their Article 7 right not to be subjected to Article 7 treatment.

The two rights simply cannot stand together once it is accepted that there is a real risk of mistreatment in some part of the territory to whose frontier they may be returned. That is the significance of Article 12, which Mr Kennett said was not significant but we submit that it is because any State Party to the Convention has an obligation to respect all of the rights.

If a person is within their territory and they are considering removing that person to another place where that person’s rights under Article 12 will be diminished, alternatively their rights under Article 7 will be infringed, then in our submission the obligation on the would-be returning State is not to return them to that place.

It is significant – picking up Justice Nettle’s point earlier, it is a fact-specific question whether there is one little place where they cannot go. Let us suppose it is just one person’s house in one town. What if it is that they are going to be safe nowhere except in one person’s house in one town?

Somewhere along that dimension you have to find whether it would be – whether there is anything in the text that justifies a diminution of their rights under Article 12. In our submission, the text does not give you any scope for finding a diminution in the rights under Article 12.

It is also significant that the complementary protection obligations have been specifically limited in some places, for example, in the Australian Migration Act in section 36(2B), whereas there is no similar restriction in the Nauruan legislation and we would say that the fact that some jurisdictions have limited the complementary protection by providing for internal relocation is tacit recognition of the fact that without that limitation, the protection is absolute – the protection of the rights is absolute.

GAGELER J: Well, it can cut both ways. It could also be evidence of State practice that supports Mr Kennett’s position.

MR BURNSIDE: Then you would have to find out whether the overwhelming number of States have diminished it, or just some, and I do not think the material allows the Court to find that. But I do not think it is an overwhelming number of States that have diminished it. Start with the observation in paragraph 12 of General Comment 31 that the obligations undertaken by State Parties to the Convention need to be taken seriously and, in our submission, once you accept that starting point, it is interesting that some countries have tried to restrict the obligations that they have undertaken, but it is significant that Nauru has not and the Court should not find an implied restriction in those obligations.

GAGELER J: The “some countries” of course include the European Union.

MR BURNSIDE: Yes. Those are the only other points we wanted to make in reply, if the Court pleases.

KIEFEL CJ: Yes, Ms Harris. Ms Harris, I see that the respondent contends that you require leave with respect to ground 3, the new ground.

MS HARRIS: Yes, your Honour. I was going to come to that after ground 2, which has the heavy lifting on international law, but in respect of ground 3 we require leave. There was consent indicated in the affidavit of Mr Zimet in support of this summons. There was consent indicated by Nauru for the amendment. However, we say that if it is opposed there should be leave granted for the reason that the factual issues that are raised by this ground are very much the same as was the subject of the way the case was run on this point in the Supreme Court.

KIEFEL CJ: I see that the basis of the objection is that it lacks merit, so perhaps we could just leave it to when you get to it for argument.

MS HARRIS: Yes, thank you, your Honour. I will go straight to the starting point for ground of appeal 2 relating to the requirement to make the best interests of the child a primary consideration in the Tribunal’s decision. The factual starting point for this ground is, first, that the Tribunal determined the entire application on the basis that although the appellant would be subject to persecution if returned, persecution both relevant for the Refugees Convention and that finding was transposed into the complementary protection findings, he could reasonably relocate within Pakistan. Those findings are at paragraphs 41, 42 and 45 of the Tribunal’s reasons.

Secondly, the Tribunal expressly found that the appellant’s child and family would be required to relocate with the appellant if he was returned to Pakistan and did relocate to another area. That is found in the Tribunal’s reasons at paragraph 9 on appeal book page 156.

Our next proposition is that the Convention on the Rights of the Child, to which it is common ground Nauru is party, is one of the instruments which impose international obligations on Nauru which are encompassed by section 4(2) of the Convention Act. So Nauru must not expel or return any person to the frontiers of territories in breach of its Convention on the Rights of the Child obligations. The Convention obligation in issue in this case is the Article 3.1 requirement that:

In all actions concerning children . . . the best interests of the child shall be a primary consideration.

It appears to be uncontroversial, but I may be corrected, that the obligations in the Convention on the Rights of the Child are encompassed by the section 4(2) obligation in the Convention Act.

KIEFEL CJ: But is not the point against you that Article 2.1 refers to the rights - State parties’ obligations to children within their jurisdiction?

MS HARRIS: Yes, your Honour, and I will go straight to that point. Your Honour, the submission that we make in relation to that - our response to that issue – of course our primary position is that Article 3 has engaged the response of the Republic in the Supreme Court and here is that there are two problems: the Article 2.1 jurisdiction problem and then whether it is an action concerning children.

I wish to make three propositions in relation to this jurisdictional point arising in relation to Article 2.1. The first is that Article 2.1 confers a right to non-discrimination, and it is not in terms of the provision of limitation which itself curtails the other freestanding rights in the Convention.

The second proposition is that Article 2 will not - even if it is accepted to impose some limitation on the other rights in the Convention does not apply to restrict the obligation imposed on the State to consider the best interests of children in Article 3. That is a distinction between the rights and the obligation which we say can operate in this case.

Thirdly, if it is accepted that Article 2.1, in referring to “child” within the States parties jurisdiction, does impose some limitation on Article 3, in the context of the Convention as a whole and having reference to other relevant international human rights instruments and principles the Article 2.1 reference to jurisdiction as applied in the context of the Article 3.1 obligation is not limited to children in the territory of or subject to the physical control of the State but applies wherever the State’s actor – in this case, the Tribunal – is taking action concerning the child, or as a jurisdictional connection, an action which may have a direct effect on the child. I will develop those three propositions briefly.

On the first point, the respondent contends that Article 2.1 limits the protection set forth in the Convention to protections with respect to each child within Nauru’s jurisdiction. That was put in terms of jurisdiction, in this case, equals territory or it equals physical power or control. That was accepted by the Supreme Court. First, we say, that Article 2.1 in terms is not expressed as a limiting provision. It says:

States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind –

and it goes on. Paragraph 2 imposes the obligation to:

take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status –

So they are both connected directly to discrimination or obligations of non-discrimination and there is international jurisprudence as to why this principle of non-discrimination is one of four core general principles in the Convention. I do not need to take the Court to that. But, on its face, this clause imposes positive obligations in relation to ensuring the enjoyment of rights without discrimination and measures to protect against all forms of discrimination.

In this respect it can be contrasted, for example, to the clear statement in the European Convention. This is why there needs to be some cautions in using these jurisdictional references in each Convention. Article 1 of the European Convention states that:

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.

So it has a very clear purpose of defining the scope of the States’ obligations to secure rights and the reference there to “jurisdiction” can be understood in that way. It is plainly intended to both impose the obligation and circumscribe it. That is not the way the Convention on the Rights of the Child is expressed.

The Convention on the Rights of the Child Article 2.1 clause can also be compared, for example, to a similar but different jurisdictional clause in Article 2.1 of the International Convention on Civil and Political Rights. As we have noted in our written submissions, that clause requires each State party to the present covenant:

to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind -

So there is that reference to non-discrimination, if you like, but then the article goes on in a way that makes it clear that the primary purpose of this article is to deal with the scope of the obligation to ensure rights and the implementation of those rights.

Paragraph 2 talks about the “legislative or other measures” that may be required to be adopted and paragraph 3 goes to the obligation of the State to have effective remedies for the rights. So it is another almost machinery provision, whereas, when one looks at the Convention on the Rights of the Child it looks much more like a provision that is intended to have a freestanding operation as a principle of a right on the part of children of non-discrimination in the enjoyment of rights.

While the Convention on the Rights of the Child may impose in particular articles limitations on the rights of the child, we say that is not done by Article 2, not on its terms nor by any necessary implication. So that it is the starting point, that it is wrong just to assume that Article 2 is meant to be a limiting provision.

The second point is that when one looks to the context of Article 2 in the Convention there are other articles which will not read comfortably and will have difficulty being reconciled if Article 2 is read as a limiting provision that limits the enjoyment of rights to jurisdiction. Those articles include Article 10, paragraph 1, which applies to applications by children to enter or leave a State Party for family reunion purposes.

Obviously a child applying to enter a State will necessarily be outside that State’s territory and at that time it will not be within its physical power or control. So there are two purposes for the references to these articles. One is to say that it aids the interpretation of Article 2.1 to suggest that it is not meant to be limited. You are meant to read these rights subject to their own internal limitations. They are textual limitations or limitations necessarily imposed by the purpose of the right.

Then the second use I would make of those articles is to say that if, contrary to my primary submission, Article 2 does impose some jurisdictional limitation, necessarily jurisdiction must have a much broader meaning than either the meaning accepted by the Supreme Court of territorial or physical power and control, or narrow meanings of jurisdiction in international law.

But I will just come back to the other three articles that we say should be considered when considering the meaning of Article 2. Article 11 deals with the State’s obligations to:

take measures to combat the illicit transfer and non-return of children abroad.

Again, plainly outside State territory and outside a State’s power and control, and it in fact calls on States to promote bilateral or multilateral agreements which acknowledges the action that may need to be taken is outside a State’s sole jurisdiction.

NETTLE J: So that is not limited to children within the jurisdiction and ensuring that they are not transferred abroad?

MS HARRIS: No, your Honour. In my submission, the reference to bilateral and multilateral agreements acknowledges that a State may have obligations to facilitate measures to combat that transfer and non-return in respect of children who might, for example, be transferred illegally into its own – or illicitly into its own territory, but who at the time are outside of its territory and power and control.

NETTLE J: But surely this obligation is directed to a nation’s responsibility to the children within its jurisdiction and it is saying that that nation will take steps to ensure that the children are not transferred abroad or not returned when they have been taken abroad. Is that not all it means? For that end, I will enter into all sorts of agreements with other nations to give effect to that aspiration.

MS HARRIS: Yes, your Honour. We would say, however, that the measures that can be taken to combat that illicit transfer will not – certainly not on this text – are necessarily limited to measures that can be taken in respect of children within that State’s own territory and control. It may be that there needs to be bilateral or multilateral agreements about the measures that must be taken to ensure appropriate identification of children and legal documentation about how children can be taken in and out of countries. There is nothing in that. And, particularly the reference to bilateral and multilateral agreements militates against some idea that you are only required to take measures with respect to children in your own territory.

The third article is Article 35. That relates to States’ obligations to take:

national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.

Again, for similar reasons, we say that that must have an effect that goes beyond the territorial or the power or control jurisdiction of an individual State. The words “abduction” and “traffic”, if you like, really militate the idea that this must be talking about the abduction and traffic of children outside of the boundaries of a particular State. Finally, Article 38, relating to States’ obligations:

to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.

It is not limited to civil conflicts or conflicts on the territory of the State and it would be a surprising outcome if that article was not interpreted to extend to children who may be the subject of obligations in international armed conflict whether within the control of the State or, for example, a civilian who is the – the child civilian who is the foreseeable target of an attack in another country.

So, the position that we put is that to interpret Article 2.1 as a strict jurisdictional limit which is applicable to each individual freestanding article of the Convention, does not co-exist comfortably with the substantive content of those other articles. We say it is not open to take that reading as a first preference because the Vienna Convention on the Law of Treaties requires a reading in context and according to its purposes.

It goes without saying that the Convention has beneficial objects which will require a broad reading – or a reading which facilitates the broadest understanding of rights which the text and context will appropriately support. We refer to the observations of Chief Justice Mason and Justice Deane in Teoh about the Convention on the Rights of the Child for that proposition, at page 289.

So, in summary, a harmonious and purposive reading of the Convention as a whole suggests that Article 2.1 does not operate certain.....limits on each other article of the Convention. Alternatively, at minimum, it suggests that Article 2 simply cannot apply to each of the substantive provisions of the Convention which then begs the question, which provisions should it apply to?

That brings me to the second point, which is that the terms of Article 2.1, if they do impose some limitation, they impose a limitation on the obligation of the States Parties to respect and ensure rights. That is not the language of Article 3, although, of course, Article 3, in its substantive effect, can confer a right on children, but Article 3 is expressed in unlimited terms to say:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The reference in Article 2, as a textual matter, does not sit comfortably with saying that is a restriction on the obligation of States within their own territory to make the best interests of the child a primary consideration.

The third proposition is the one that is engaged in more heavily in our written submissions, and that really goes to the meaning of “jurisdiction”. It is an alternative proposition to the two propositions I have made: that Article 2.1 is not intended to limit Article 3.

We can accept that the meaning of the term “jurisdiction” at international law can serve as a guide to the meaning of the word in the Convention, but it is also clear that there is no fixed single meaning of “jurisdiction” in international law.

We have referred in paragraph 55 of our submissions to concepts that are encompassed by the concept of “jurisdiction” in international law. There is jurisdiction to prescribe or legislate, jurisdiction to enforce - - -

KIEFEL CJ: It is put against you that, with respect to the application of treaties, the term “jurisdiction” is presumed to be limited to the territorial boundaries of a State.

MS HARRIS: The reason we say that that is not an acceptable interpretation, your Honour, is that the two treaties that existed at the time of the conclusion of the Convention, when they intended to refer to territorial limitation, expressly used that terminology. So, in the ICCPR, Article 2.1 refers to:

respect and to ensure to all individuals within its territory and subject to its jurisdiction –

So that instrument of 1966 was obviously at the forefront at the mind of people developing this new convention. On that point, your Honours, if I might say we have not provided the Court with the travaux – there is a compilation by the UN and Save the Children Sweden of documents that are the travaux préparatoires to this Convention and the reason we have not referred to it is it is not very enlightening on this point, but we can provide that to the Court and the highest that that document assists us, in my respectful submission, is that it shows that the drafters of the Convention certainly intended not to adopt a territorial limitation, but it does not enlighten anyone as to what the meaning of jurisdiction is then intended to be.

GAGELER J: Well, it sounds pretty high to me. It sounds very helpful to your case if - - -

MS HARRIS: It is certainly helpful to our case, but it may go no further, and if the Court is willing to receive that document after lunch, I have provided a copy to my learned friends and I will provide that to the Court. It reinforces the point we make that both the Convention against Torture - the wish to adopt a jurisdiction or limitation in terms of territory said that. So that is Article 2.1 of the Convention against Torture and, as I have just said, Article 2.1 of the ICCPR has that same express reference to territory.

That can put paid, in our respectful submission, to the Supreme Court’s conclusion that “jurisdiction” in Article 2.1 of the Convention on the Rights of the Child means territorial jurisdiction. They also accepted a submission that it could mean physical power and control and for the reasons that I have referred to in terms of the context of Article 2.1 our submission is that the content of the Convention on the Rights of the Child as a whole and the nature of some of its obligations which necessarily must extend to children who are not within the physical control or power of the State, such as the child in another State seeking family reunification, that concept of jurisdiction can also not be the concept of jurisdiction that is adopted in Article 2.1 of the Convention. Again, we also call in aid the requirement to read the provisions of the Convention beneficially.

So, the proposition that we ultimately put is that jurisdiction, in this sense, goes back to one of the concepts referred to by Sir Ian Brownlie in his work, “Principles of Public International Law”, that what one is looking for is a substantial connection if there is to be any extraterritorial jurisdiction for jurisdiction exercised, it is necessary that there must be some substantial connection.

Our submissions also refer to the case of XYZ v Commonwealth where Justice Gleeson, in the quite different context of the Commonwealth legislative capacity to legislate against acts concerning children overseas, did adopt that statement to Sir Ian Brownlie as to what limitations will arise if a State is looking at its extraterritorial jurisdiction. We have also referred to Professor Lowe’s reference to connection being the type of - - -

KIEFEL CJ: Does the word “within”, though, in Article 2.1 suggest a limitation in the notion of jurisdiction to territory - within the jurisdiction – a physical presence?

MS HARRIS: In our respectful submission, no, your Honour, because it would be a very general word to use to import such a connection.

KIEFEL CJ: I have in mind, by comparison, for instance, to take up the point I think you are making about international law may recognise a country having jurisdiction beyond its territories – say, with respect to citizens – its laws relating to citizens’ actions overseas. One can accept that. But, here, the terms are “within a jurisdiction” which seems to be quite confined. It circumscribes the notion of jurisdiction.

MS HARRIS: There are two points I should make about that, your Honour. First, when confronted with the background of other conventions that have referred, for example, to “within its territory” or “subject to its jurisdiction” it would be surprising if the drafters of the Convention of the Rights of the Child used that language to intend to import some idea of either territorial or physical control over the child and, reading this Convention in light of its object and purposes, we say that would not be sustainable to interpret it so broadly when other interpretations are available.

NETTLE J: So do you say that these children in this case were within the jurisdiction of the Tribunal?

MS HARRIS: We do, your Honour, in the sense that it is our alternative proposition and it was one child, this appellant, but the reason we say that, your Honour, is that that Article 2 reference needs to be - if it is applicable as some sort of limiting factor on other articles of the Convention, it needs to be applied to that specific article. The obligation to consider the best interests of a child in all actions of the State, we say can readily be engaged as being something falling within the jurisdiction when the actor who is undertaking that action is within the State and that is not enough.

KIEFEL CJ: Are you saying jurisdiction comprehends a procedural obligation?

MS HARRIS: Yes.

KIEFEL CJ: It arises out of Article 3.1, rather than 2.1, does it not?

MS HARRIS: Yes, but we say it can sit harmoniously with Article 2.1 if jurisdiction in that sense is understood to be any case where that State actor has the power to affect a child by their actions.

NETTLE J: But it does not, does it?

MS HARRIS: Your Honour, our submission is that it does for this reason: when the Tribunal made its decision in respect of the appellant it accepted that Nauru had obligations first under the Refugees Convention and secondly because it really adopted that same reasoning in relation to complementary protection, not to return the appellant because of the real risk of harm.

The findings in this case were that in the past there had been attempts on his life, he had been physically assaulted, he had had friends and brothers killed, so the harm is to be understood in that context when there is a finding of real risk of harm.

Your Honour, the only way that the Tribunal then finds that Nauru does not have an international obligation of protection, either under the Refugees Convention or the complementary regime, to this appellant is because he could relocate. It was a factual finding made by the Tribunal that when he relocated he would relocate with his family.

The Tribunal’s decision was premised on the only way that Nauru could discharge its legal obligations while finding that there were no protection obligations to this person was that this person would go home and would relocate with his child and other dependants within Pakistan.

NETTLE J: But he could go home and relocate if he chose to do so.

MS HARRIS: Yes, your Honour, if his application for protection failed, and that would appear to be his only - - -

NETTLE J: It is enough, is it, that because he could choose to relocate, and if he did so he would take his child with him, the child is within the jurisdiction?

MS HARRIS: Your Honour, we would, with respect, cavil with the words “he could choose to relocate” because at this point there has already been a finding that there is a real risk of harm.

NETTLE J: Put it on the basis that if he chose to relocate or if he relocated, he would take his child with him. That is enough to bring the child within the jurisdiction of Nauru?

MS HARRIS: The Tribunal’s finding - and I should, with respect, take the Court exactly to that – was that that was the only way that the appellant would avoid the consequence of the real risk of harm.

NETTLE J: Yes, I follow that.

MS HARRIS: Your Honour, at paragraphs 38 and 39 onwards at appeal book 166, at this point there has already been a finding at paragraph 25 that:

the Tribunal is satisfied that –

the appellant:

has a well-founded fear of being persecuted for Convention reasons in the event he returns to his home area in Pakistan.

When one looks backwards at the findings at 23 and 24 it is clear that that risk of harm really is of death or serious assault. So the Tribunal then went on to consider the relocation question, both for the purposes of the Refugees Convention and complementary protection. The appellant had put objections based on his fear that wherever he went in Pakistan he might be pursued by the Taliban and that was not accepted. The Tribunal then moved to the reasonableness of relocation question and found at paragraph 38:

The applicant contends that his ethnicity, family commitments and lack of resources would prevent him from relocating even if it were safe to do so.

I will move on to 39:

While the Tribunal acknowledges that it might take the applicant some time to re-establish himself in a different part of Pakistan before he would be able to have his own family join him, the Tribunal notes that the applicant gave evidence that his family own their home as well as the shop underneath, from which they draw rental income, and that his brothers in Peshawar are also assisting them.

That finding was made against the context, your Honour, of a very clear statement to the Tribunal, at appeal book 42, paragraph 31:

I have a number of dependents including my wife, my son, my mother and my brother. Wherever I go in Pakistan I would be forced to take my dependent family members with me and fear that if we were to attempt to relocate my family and I would be exposed to an increased risk of harm from the Taliban.

For these reasons I fear that my family and I would be unable to safely and effectively relocate within Pakistan.

It appears from paragraph 39 that the Tribunal has accepted that. So, first, the Tribunal’s decision is premised on the only reason there are no obligations is that he can relocate, and he can only relocate if he relocates with his child and family. In our submission that has a direct effect on his child, which is quite capable without any offence to principles of international law about sovereignty and respect for other States’ sovereign territorial jurisdiction to say that a decision-maker in one State, which is accepted by that decision-maker as likely to have a direct practical effect on the child, is in the relevant sense dealing with an issue within the State’s jurisdiction.

KIEFEL CJ: That might be a convenient time.

MS HARRIS: Thank you, your Honour.

KIEFEL J: The Court will adjourn until 2.15 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16PM:

KIEFEL CJ: Yes, Ms Harris.

MS HARRIS: Thank you, your Honour. I believe you should have in front of you the document authored by Justice Greenwood who was Professor Greenwood at the time. I have noted at the top the source. It is a document that is made available by the Office of Legal Affairs of the United Nations and it is a convenient summary of the sources of international law.

It starts off with the reference to Article 38 of the Statute of the International Court of Justice which has always been recognised as the starting point, but it is accepted that is no longer comprehensive. Then at the very end of the document - or the penultimate paragraph at 7 talks about other sources and makes some observations about the organs of the United Nations and the fact that their role is an important one in the law-making process at international law.

GAGELER J: It is an obvious point, but we are not really talking about sources of law. Here we have treaties. We are talking about aids to interpretation of a treaty.

MS HARRIS: That is true, your Honour, and in that sense these matters that we have been talking about are persuasive, but not binding. It would not, for example, in the international system bind the International Court of Justice but it would be regarded, in my submission, as persuasive.

I think there is an International Court of Justice authority that someone had looked up and realised was of some limited assistance. But, in reading a case, for example, like BL, your Honours will be looking to not just the conclusion in that case – and I would observe that it is an obiter dicta conclusion given the findings that have been made that there was no proof of real harm. But, whether there was reasoning in it that was persuasive as to the way the obligations operated in that case and our submission is that there was no such persuasive reasoning.

The second document that we have provided to your Honours’ associates is the travaux preparatoires document that I referred to about the Convention on the Rights of the Child. There is a lengthy component which is the index, your Honours. Just to give your Honours an idea of how that document works, towards the back of the document, your Honour, on last few pages, starting at page 329, there is a technical review of the non-discrimination article and there is some discussion about the terminology to be used. If one moves, your Honours to – I think the heart of the matter is at page 333, the second last page, there is some discussion of a text that, at that time, still included reference:

to each child in their territories –

That can be seen at the top of the page. That was the subject of deliberations, and at paragraph 160, there is a query from Poland about the meaning:

of children “within a territory but not subject to the jurisdiction –

At paragraph 160:

The observer for Australia recognized the problem but said that they had used the Covenants as models and that in the case of the diplomat’s children –

they would all “be governed by their own laws”:

The observer for Finland . . . recognized that an important issue had been raised and proposed . . . the deletion of the reference to territories and keeping only the reference to jurisdiction, such as in the European Convention.

Australia agreed and then ultimately the text was adopted in the form that we now see.

KIEFEL CJ: What do we take from this?

MS HARRIS: Your Honour, I take only that there was certainly an intention that the clause not reflect a concept of jurisdiction that was restricted to territory as a deliberate choice, not to include that term.

KIEFEL CJ: For a particular purpose, though.

MS HARRIS: Because there was an intention that it should be of wider coverage, your Honour. If I can perhaps just go back to paragraph 147, in the last sentence in that paragraph the observer for Australia had indicated that it was the intention of the revisions there to take the text further than existing instruments. So a limited amount can be drawn as to what it does in fact mean in referring to within their jurisdiction but it certainly means that the starting point is that it does not mean territorial jurisdiction.

GAGELER J: The text to which you have referred, Brownlie and I think a version of Lowe, both seem to me, at least at first reading, to suggest that jurisdiction is essentially concerned with the ability to exercise governmental power, as distinct from an ability somehow to produce practical consequences, the distinction I draw for the purposes of testing your argument in this case.

MS HARRIS: Yes.

GAGELER J: Do these materials go beyond establishing that one meaning of jurisdiction can be an ability to exercise governmental power?

MS HARRIS: Certainly one meaning of jurisdiction is to exercise governmental power, and your Honour will have seen that Sir Ian Brownlie identifies these three different types. One is an executive administrative-type exercise of governmental power, one is a judicial-type power, one is a legislative prescriptive-type power.

The point that we take from Professor Brownlie’s text is that, first, he recognises that traditional concepts of starting with a territorial understanding of international law no longer apply and that if one is looking at the sorts of extraterritorial measures that might be taken, there are some limiting principles that should be considered and when that jurisdiction might be exercised and attracted, and the limits on when a State could use for itself or exercise some form of extraterritorial power validly within its jurisdiction.

That is the authority that we refer to that Justice Gleeson adopted and usefully we have referred to – usefully in our case we refer to the fact that Sir Ian Brownlie in the passage quoted at paragraph 6 of XYZ v The Commonwealth starts with when extraterritorial acts can lawfully be the object of jurisdiction. So that is the starting point in acceptance that they can be the subject of jurisdiction in international law, and then posits three limitations. The first is that:

there should be a substantial and bona fide connection between the subject-matter and the source of jurisdiction;

And here we say that the source is that the Tribunal as an arm of the Republic of Nauru is exercising jurisdiction over the applicant and making findings that necessarily impact on his child. The second limitation posited is that:

the principle of non-intervention in the domestic or territorial jurisdiction of other states –

and we say that a procedural consideration of the best interests of the child as would be involved on the part of the Tribunal in this case involves no impairment of the domestic or territorial jurisdiction of Pakistan, for example. The third limitation is:

that a principle based on elements of accommodation, mutuality, and proportionality should be applied. Thus nationals resident abroad should not be constrained to violate the law of the place of residence.

We say that is not a matter that arises here. The point we seek to make is that it is not unknown in international law for the jurisdictional connection that might be extraterritorial to be a substantial – to fit this definition of a substantial connection – to be a direct effect on the interests of another person.

GAGELER J: They are all limiting considerations.

MS HARRIS: Yes.

GAGELER J: My concern is - - -

MS HARRIS: Finding the positive.

GAGELER J: Yes.

MS HARRIS: Your Honour, there are examples in international law that, by analogy, suggest that it is not unknown for international law to either give States responsibility for acts that have effects beyond their jurisdiction or to permit States to take acts that have effects beyond their jurisdiction. We have talked about one example this morning, which was the extradition example.

In the case of Soering – that we, I think, have provided to the Court, but I do not need the Court to turn to it because my time is limited – but that is the leading extradition case where the court accepted, in a similar way to the Kindler Case that we talked about this morning, that where the State takes an action with respect to an individual with the foreseeable consequence that their rights will be violated – in the Soering Case, the European Convention – the State is required to look to that foreseeable consequence because it will have responsibility for that consequence.

So in Mr Soering’s case it was exposure to the death row phenomenon that was not caused by the extraditing State but was a foreseeable and necessary consequence of what would occur to him if the Sstate extradited him. So that engaged Article 3 in that case.

We have also referred in our submissions to cases in other contexts: the Drozd and Loizidou cases that are referred to in paragraph 56 of our submissions where it is obiter dicta because the facts of those cases did involve some physical action of a State actor outside the territory: in the case of Loizidou, Turkish soldiers in the non-Turkish part of Cyprus; and in the case of Drozd, actions of French judges in Andorra. Both cases say that the State may have jurisdiction and responsibility for acts of its authority which produce effects outside its territory. We say that that is the relevant point here.

By reason of the Tribunal’s findings – this is not an uncontained or boundless obligation. The Article 3.1 best interests procedural requirement is to make the best interests of the child a primary consideration in all actions concerning children. There is also a clear demarcation of when there will be an effect, because in this case the Tribunal accepted it.

It accepted that it would have an effect on the child because the child would have to move location, and it premised its decision on that happening. It accepted that if the applicant relocated the child would have to relocate too, but it accepted that that is what would happen because otherwise the appellant would be subject to real harm and persecution in his former place of residence in Peshawar.

So the other analogy in international law which we wish to draw the Court’s attention to, to make it clear that it is not entirely unknown to be looking to the effects of State action outside the territory and involving persons not of one’s nationality or citizenship and out of the State’s physical control is the example in.....which the respondents say is not relevant because that involved a direct legal effect on the child seeking to be reunified with the family.

That child was outside of Switzerland wanting to be reunified with the family but as soon as there is an acceptance that the obligations were engaged because of the direct legal effect on the child, if there is a legal authorisation for the child to become a resident in Switzerland, it is accepted that effects by a decision-maker in the one State on a child outside its jurisdiction may attract the Convention obligations. That is the way we put it.

We acknowledge that it has not been the subject of any prior determination in international law but we say it is by no means a novel idea in international law that a State actor – for example, a decision-maker in this case – if they are making a decision that is accepted to have a practical effect outside the jurisdiction, that can be said for this purpose to be within the jurisdiction.

We rely on our written submissions on that point and I should move on because there is another point that is made by the respondent and that is that this is not an action concerning children. If I can go to the straightforward aspect of that first; it is apparent from the consideration of the words “actions concerning children” in this Court’s decision in Teoh that it is to be very broadly understood. Justice Mason and Justice Deane considered that question at page 289 and held that:

It is clear enough that the decision –

of the Tribunal:

was an “action” in the relevant sense of that term –

I have interposed Tribunal:

but was the decision an action “concerning children”? The ordinary meaning of “concerning” is “regarding, touching, in reference or relation to; about”. The appellant argues that the decision, though it affects the children, does not touch or relate to them. That, in our view, is an unduly narrow reading of the provision, particularly when regard is had to the grounds advanced in support of the application and the reasons given for its rejection, namely that the respondent’s bad character outweighed the compassionate considerations arising from the effect that separation would have on the family unit, notably the young children. A broad reading and application of the provisions in Art 3, one which gives to the word “concerning” a wide-ranging application, is more likely to achieve the objects of the Convention.

There is a similar finding by Justice Toohey at page 303. We have also referred to the decision of his Honour Justice Wilcox in Guo v Minister for Immigration and Multicultural and Indigenous Affairs where the decision related, somewhat like the situation in Teoh, to a person who was seeking permanent residency in Australia, which, if refused, would mean he was separated from his children born in Australia.

Justice Wilcox took it one step backwards and said that even a decision about an extension of time to hear an appeal from a decision about that subject matter would be an action concerning children. I refer to paragraph 55 in particular of his Honour’s decision.

So on that point – just to summarise, the action concerned the child of the applicant because first the appellant raised the child’s circumstances in the submissions and the evidence to the Tribunal – in particular, the statement of 19 December 2013, appeal book 42, at paragraphs 31 to 32. He referred in the interview, when asked, at appeal book 130, to the fact that it was only because of the force upon him that he had left his wife and child in detention and said who would not want to be with his baby and leave his young baby behind, but more importantly the Tribunal expressly found that the child would be required to relocate with the appellant and that is the reasons at 39.

Then the decision then operated upon that finding of relocation – which was not just the appellant but his family, including the child – to say that the international obligations were not engaged, at paragraphs 41 and 45.

There is a separate point taken by the respondent that this obligation could not attach to the Tribunal itself because even assuming that Article 3 of the Convention applies to the Republic of Nauru, section 4(2) of the Act does not mean that the Tribunal is subject to that obligation. What we say about that – if it is accepted that Article 3.1 of the Convention on the Rights of the Child does apply to Nauru, the Tribunal decision about the appellant’s status is so much a part of the process by which the appellant may be returned to Pakistan – at least not entitled to refugee status or complementary protection – that the international obligation must, to consider the best interests of the children – must extend to the Tribunal in its decision-making process.

Alternatively, if the respondent’s position was accepted and the Tribunal’s role is to ensure that the Republic does not breach its international obligations, the Tribunal would necessarily have to be satisfied that at some point the best interests of the children had been considered before return or expulsion – before return of the appellant because if that is not satisfied then as soon as the appellant is returned without some process for considering the best interests of the child that obligation will not have been satisfied.

To think that it might be to the contrary – that at the point that the Tribunal is required to consider the reasonableness of relocation, it should not be the entity of the Republic of Nauru that is also responsible for considering the child’s best interests, does give rise a serious question about how it could possibly operate because, surely, it is not the administrative officers of the State when physically arranging for the deportation that would then be expected in some way to consider the best interests of the children - - -

KIEFEL CJ: I note that you are extending somewhat into the respondent’s time and you have not dealt with ground 3.

MS HARRIS: I am. I will be very brief with ground 3, your Honour. We rely on our submissions in that respect. We have recast the ground of appeal to be one which refers – we seek leave, your Honour, to recast the ground of appeal to be one which refers to the Supreme Court’s error in failing to conclude that the Tribunal erred by failing to consider all integers of the appellant’s objections to relocation. In our submissions we have referred to the matters that were put to the Tribunal as reasons why relocation would not be “reasonable” or “practicable”, in the words of this Court in SZTAV v Minister, paragraph 24.

Before coming to those individual matters, one of the matters relates to the fact that the appellant made it clear that he had a child and he had dependants, but we have particularly drawn attention to the fact that he had a child. Her Honour Justice Mortimer’s decision in MZANX v Minister [2017] FCA 307, the first of the authorities in our list, focused on the issue of the reasonableness of relocation and talks about the fact that this is a detailed assessment of the particular circumstances of a particular person.

But also what follows from that in the case of a person who says, “I have dependants and a family who will have to come with me”, it means you will have to consider that person’s relocation not as a single man, but as a man with a family. That is a very different question as to what is reasonable and practicable.

What we find in the Tribunal’s decision is that the Tribunal really went no further than looking individually at the appellant, first saying this is not really – relocation as to relevance, “It’s not a problem for you. You won’t be pursued by the Taliban elsewhere and we don’t accept that you’ll be subject to such a level of discrimination that there’s complementary protections in the Punjab”, and perhaps Lahore; it was not very specific about the location. It then turned to the reasonableness consideration and the Tribunal’s consideration really is contained at paragraph 39 of its decision.

That consideration starts before that at paragraph 38 with an acknowledgement that “ethnicity, family commitments and lack of resources” were the objections raised to prevent him from relocating. It moves on then to say:

While the Tribunal acknowledges that it might take the applicant some time to re-establish himself in a different part of Pakistan before he would be able to have his own family join him –

Clearly, it is an acceptance that the family would join him but there might be a hiatus. It goes on then to talk about the family own their own home, so that will be potentially a source of income, he might sell assets such as his shop. It notes that he “has considerable experience as a small trader”, that he can read and write Urdu and some English, and that this suggests “little practical impediment to the applicant’s relocation”. It then goes on at paragraph 40 to say:

With respect to the suggestion that a newly arrived Pashtun would face difficulty integrating, the Tribunal notes that –

It leaves that sentence hanging; it does not conclude that but refers to a study that suggests that Punjabis will permit him to integrate. That is the full extent of the consideration. It does not consider anything about how the family might be affected by relocation.

I will not take the Court now to MZANX in detail, but if the Court would look at paragraph 62 of her Honour Justice Mortimer’s judgment, it observes that matters such as healthcare and housing will be quite different in the case of a person with a young family than in the case of a single man by himself. Other matters like education ultimately – all of these things. Do the child and the wife, the dependent mother and the young brother speak anything other than Pashto? It is not considered.

NETTLE J: Was there any evidence one way or another about those matters?

MS HARRIS: No, your Honour. We say that in the case of something that is not putting forward your positive claim about why you fear persecution but responsive to the Tribunal’s view that you may be able to relocate, if no questions are asked about those things then it is not surprising that matters are not put forward. The appellant, at paragraph 31 - - -

KIEFEL CJ: It is rather putting it around the wrong way, is it not? Do you mean the Tribunal is obliged to inform itself about matters upon which the applicant for refugee status might wish to rely upon?

NETTLE J: Even if he does not raise them himself?

MS HARRIS: The first point he raised was that “if I have to relocate, my family has to relocate with me; they are my dependants”.

NETTLE J: I have got that covered. What about the other things – the childcare - - -

KIEFEL CJ: The language.

NETTLE J: The language, healthcare.

MS HARRIS: In the course of the interview before the Tribunal, questions were asked of him with respect to relocation. It would be reasonable for him to be answering those questions and reasonable for the Tribunal – her Honour Justice Mortimer goes to this point as well – to say, “What about your family too?” in the course of that questioning. If nothing is said, it is hard to see how the Tribunal could discharge its obligations.

KIEFEL CJ: But given that the effect is that there is no evidence upon the issue for the Tribunal to consider, this ground surely ought to be – if it be a ground – that the Tribunal failed to inform itself by asking the right questions. That is really your complaint, is it not?

MS HARRIS: That is an aspect of the complaint, your Honour, yes.

KIEFEL CJ: That is its starting point.

MS HARRIS: Yes, it is the starting point and it had as a result that it necessarily failed to consider the objections to relocation but it really failed to discharge the task of considering whether it was reasonable and practicable.

NETTLE J: Does this MZANX go as far as saying that once the concern about children is ventilated one way or another, it is incumbent on the Tribunal to, as it were, make up a checklist of questions and go for them about each of these sorts of considerations?

MS HARRIS: No, your Honour. Justice Mortimer does not go that far but she does say it is something that there is an obligation for the Tribunal to be positively satisfied of that it is reasonable and practicable. If it has not put itself in the position by at least asking a question about those matters, that may well be relevant. Her Honour observes – makes an observation that is relevant to this case – that it is not just the absence of reasons – because the respondents draw attention to the fact that there are limits on the obligations to give reasons – but we say the omission to refer to some of these things means the Tribunal had not regarded the family position as material and we say it is.

But, secondly, the fact that it is not really raised in the course of the questions means that the Tribunal just has not really turned its mind to it. In MZANX, at paragraph 65, her Honour Justice Mortimer, said “I’m not saying the absence of questioning is a separate ground here, but it shows the lack of particularity in the reviewers approaching that case. It shows that they just did not turn their mind to the fact that we are not just talking about a single man here, we are talking about a man who has a family with him”.

So, we otherwise rely on our written submissions in that respect, your Honour. We have also referred to some other integers of relocation and we say they are not individual things that might – apart from the family and the child issue, they are not individual things that might say this would constitute a failure to consider the question properly or sufficiently material of itself.

But the failure to consider in the reasons the effect of the fact that he could not get a guarantor to rent a house in circumstances where it was acknowledged that his family would be back home still living in the family home, relying on the shops underneath to provide the rental income to live off, but that somehow at the same time without access to a guarantor the appellant would be in Lahore where he knows nobody, not yet having been able to realise the sale of the house and the shops or get a guarantor to rent a

place, he is expected somehow in those circumstances to re-establish himself for his family to then come and join him.

So collectively and in the context of other matters raised in the transcript about the very low earnings of his shop at the market, matters of that nature, it really just suggests a failure really to engage with the particular circumstances of this individual as to whether it is reasonable and practicable to relocate. If your Honours please.

KIEFEL CJ: Yes, Mr Kennett.

MR KENNETT: Your Honours, the ground that relates to the Convention on the Rights of the Child, ground 2, as we apprehend it is put on the basis that the requirement in Article 3 of the Convention bound the Tribunal in its decision-making and that suffers from the fundamental problem, we say, that that requirement, that is, Article 3, has not been adopted as part of the domestic law of Nauru as a requirement applying to governmental decision-making.

The closest one gets is the acknowledgement in section 4 of the Refugees Convention Act that Nauru is not to refoule people in breach of its international obligations and the acceptance that a person to whom complementary protection is owed might – that a person can be recognised as somebody owed complementary protection if return of that person to the country they came from would involve a breach of Nauru’s international obligations.

Now, conceivably the Convention on the Rights of the Child could be swept up in the latter question. Conceivably there could be a claim that for Nauru to return a person to their home country would be a breach of its international obligations because of obligations that Nauru has under the Convention on the Rights of the Child.

Perhaps if the person proposed to be removed was a child or was a parent who would leave children in Nauru, one could imagine that sort of claim being raised and having some prospects. No such claim was raised in this case, which is a reason, and a good reason we would say, why the Tribunal did not assess any such claim.

The Tribunal was not called on to decide whether the return of this appellant to Pakistan would constitute a breach of Nauru’s obligations under the Convention on the Rights of the Child. Had that claim been made, there would have needed to be some analysis of what the decisions surrounding return or refoulement involved. But it just was not raised and the Tribunal cannot be said to have erred by not considering that claim.

We have not given your Honours this reference before but I should. This is similar to what was said in relation to Australia’s Refugee Review Tribunal in S134 [2003] HCA 1; 211 CLR 441, at paragraph 31. The nature of the Tribunal’s task here meant that it was not obliged to consider possible claims of complementary protection that were not made before it. But in any event, that is not, as we understand it, how our friend has put the case.

Our friends say that the decision of the Tribunal itself was an action concerning children and the Tribunal itself was under obligations deriving from Article 3. That, as I have said, suffers from the problem that Article 3 has not been translated into the domestic law.

It also suffers from the problem that the decision of the Tribunal is difficult, at the least, to fit within the framework of Article 3 because it did not involve the weighing of considerations in any discretionary sense, such that the interests of a child could be brought to bear as a primary consideration.

The Tribunal’s task was wholly and solely to apply statutory criteria to facts that it found. It did not have any role in weighing competing considerations to come to a preferable outcome. So the language of Article 3 just misses the mark if it is sought to be applied to the Tribunal’s decision-making process.

GAGELER J: One element of which was to assess reasonableness - - -

MR KENNETT: That is so.

GAGELER J: - - - of relocation, which is an inherently evaluative exercise.

MR KENNETT: Evaluative but not discretionary, we would say. Reasonableness is a standard which arrives in the analysis by a route involving another international Convention.

NETTLE J: But, you seem to be accepting, at least, the possibility that because of section 4, there may have been an obligation – at least if the point had been taken – to consider the interests of the child being affected if the subject were returned to the country.

MR KENNETT: Not because of section 4, but because of the way complementary protection is defined in section 3.

NETTLE J: Yes.

MR KENNETT: One could conceive of a case where it could be put that the return of a person to their home country would be in breach of Nauru’s obligations under the Convention on the Rights of the Child.

NETTLE J: And, if that argument had been advanced in this case – and I appreciate it was not – but if the argument had been advanced before the Tribunal, you ought not return me because it will prejudice the interests of my child, would it be the case that the Tribunal would be obligated to take into account Article 3 considerations in relation to that child?

MR KENNETT: This is very speculative, but the Tribunal would be required to assess whether the return to Nauru would be a breach of, for example, Article 3 and would then have to make some guesses about how the return would be brought about - - -

NETTLE J: Yes.

MR KENNETT: - - - and what factors would be taken into account at that stage.

NETTLE J: But, you say that none of that is to the point because the point was not advanced.

MR KENNETT: Yes, yes.

NETTLE J: And, it had to be before there was an obligation to take it into account?

MR KENNETT: Yes, there would. That is how we would put it. And, even if we are wrong about that and if we are wrong in our characterisation of the Tribunal’s task – and just to, perhaps, finish the point I was making in response to Justice Gageler – the reasonableness standard is one which arises from the ICCPR by the route that we examined this morning. And, it was not part of the Tribunal’s role – whether influenced by the Convention on the Rights of the Child or otherwise – to decide that a particular factor was to be the primary consideration in that reasonableness assessment.

It is an objective standard that arises from the ICCPR. But, we say, more deeply than that, it is not a discretionary exercise and so the language of considerations does not apply to it. If we are wrong about those things, then one needs to go into the issues in relation to Article 2 as to which, we would say, these things. Article 2 is the jurisdiction clause – if I can put it that way. Firstly, the subject matter of the Article is the rights set forth in the Convention and it instructs – the clause instructs State parties as to whom and in what manner those rights are to be afforded.

It does not sit well with Article 2 to try and read it in a way that excludes Article 3 from its coverage, as our friend sought to do. It is true that Article 3 does not use the word “rights” or “right”, but nor do some other articles such as Article 4, Article 5 and Article 10. All of these in a relevant sense give rise to rights and all of them, we would say, are within the scope of Article 2. Article 2 tells State parties that those rights have to be afforded without discrimination. It also tells State parties to whom those rights need to be afforded.

If Article 3 for some reason was not covered by that formulation, then Article 3 would not be covered by the non-discrimination language in Article 2, which is not a result that has implications here, but is a result that the drafters of the Convention are, to say the least, unlikely to have intended. You cannot take Article 3 out of one part of it without taking it out of the other. So the attempt to exclude Article 3 from the coverage of Article 2 fails, in our submission, and Nauru’s obligations and the Tribunal’s obligations, to the extent that it has any, are limited to decisions in respect of children within Nauru’s jurisdiction.

As to the meaning of “jurisdiction”, we accept in the written submissions that it may go beyond territory but “jurisdiction”, in our submission, connotes the exercise or the ability to exercise some form of governmental power. So, one of the examples in the cases was a child outside of the country seeking entry to the country for the purposes of family reunion, although it need not be for that purpose.

We can readily accept that a child who is applying for permission to enter country X is within country X’s jurisdiction in the sense that Article 2 specifies because that is a case where the country is exercising a form of power over the person which affects not only their rights, his or her rights in a general sense, but his or her status under the law of that very country. That is an easy example.

But none of the examples and none of the cases that have been referred to are sufficient to extend the notion of jurisdiction to a person who is affected in a practical way by a decision that the authorities of a country make about the legal rights of somebody else. So the appellant’s child here, we submit, if the Court gets to this issue, is not relevantly within the jurisdiction of Nauru and thus not a person in relation to whom Article 3 of the Convention gives rise to obligations.

Another aspect of our friend’s argument on jurisdiction was to point to a number of authorities and academic discussions relating to circumstances in which international law allows or countenances the assertion of jurisdiction by States. They are dealing – and part of that discussion was seen in paragraph 6 of XYZ v The Commonwealth.

But that is dealing with quite a different issue, we say. That is treating - those cases are proceeding on some sort of underlying notion of jurisdiction as involving responsibility or rights to exercise power or control and asking in what circumstances does international law contemplate a State asserting those rights.

That is quite a different question from seeking to understand what the word “jurisdiction” means in a convention such as the present one. We say it has to be understood in a relatively conventional sense and, even if it is understood in a fairly extended sense, it does not get close to reaching a person in another country whose interests would be affected in a practical way by the decision that is being made.

As an adjunct to that, the attempt to bring the appellant’s child within jurisdiction rests on a particular reading of the Tribunal’s reasoning and it is a reading which involves I think the proposition that there were findings that the appellant’s child would be required to or would relocate with him, or to live with him, and we apprehend that it is put that way in order to bolster the proposition that this was a decision which necessarily and directly affected the rights or at least interests of the child.

As to that, part of that submission was that the submission that the appellant had made at appeal book page 42, paragraph 31, had been accepted. We, with respect, do not see that in the Tribunal’s reasons. The Tribunal accepted what he said about his family composition but it does not endorse, on our reading, the proposition that he would be forced to take his dependent family members with him, let alone the proposition that to do so would expose him and them to increased risk of harm. The Tribunal, at paragraph 39, which is the critical paragraph for the purposes of this point, just says:

While the Tribunal acknowledges that it might take the applicant some time to re-establish himself in a different part of Pakistan before he would be able to have his own family join him –

The Tribunal expresses no firm view as to whether he would make that choice, although it is at least implicitly satisfied that he would in time be in a position to make the choice.

NETTLE J: But surely, in considering whether it is reasonable for him to relocate, the Tribunal is having regard to whether he could have his wife and child with him.

MR KENNETT: I certainly accept that. What the Tribunal is not doing is making a finding of fact, as a matter of prediction, that that will occur, let alone that it would be in some way constrained to occur.

NETTLE J: But it is making a finding that, assuming he were to try to have them with him, he could do it within a reasonable period of time and therefore it is reasonable to relocate.

MR KENNETT: Yes. That is right, your Honour. That is part of the reasonableness finding. That involves an acceptance that it can be done reasonably – it is possible for the family to live together. The Tribunal has obviously given thought to that.

NETTLE J: And that reasonableness consideration would include consideration of Article 3 factors but only if they were advanced as a consideration, you say?

MR KENNETT: No. The hypothetical claim I have postulated is one where return of a person to a country is said to be a breach of the Convention for some reason, such as that the return would be effected without consideration of the interests of the child. This is a separate exercise from the assessment for refugee purposes or ICCPR purposes of the reasonableness.

NETTLE J: So in this separate consideration, as it were, of reasonableness, one does not take into account Article 3 considerations?

MR KENNETT: One may but not by force of Article 3.

NETTLE J: Just because they are logically relevant considerations.

MR KENNETT: Yes. The point I am seeking to make is that the Tribunal is not here making findings which have as their necessary basis an action being forced upon a child, let alone one forced upon the children regardless of the child’s interests. So for all of those reasons, this was not a case about a child within the jurisdiction of Nauru in the sense referred to in Article 2.

So for that further reason, the ground as put, and also the alternative ground which was not put but which I have indicated might exist in some cases, neither of those arguments is viable here in a circumstance where the child was not a child within Nauru’s jurisdiction. I move on to ground - - -

KIEFEL CJ: We do not need to hear you in relation to ground 3.

MR KENNETT: If the Court pleases. There was one other thing I was going to tell you but that relates to ground 3, so I will not.

KIEFEL CJ: Thank you. Yes, Ms Harris.

MS HARRIS: I am aware of the time, if I can make some very brief points. One point is that the Supreme Court of Nauru, on one view, given the acceptance by the Republic now that jurisdiction cannot simply be limited to physical power or control or territory, plainly erred.

That would seem to be common ground because the effect of paragraph 54 of its submissions, where it repeats the submission that they are the limitations on jurisdiction, combined with paragraph 60, appears, in the absence of clear consideration by the Court, to be a straightforward acceptance of that proposition which, in our submission, is incorrect on any view of the authorities.

The proposition that, in respect of Article 3, it could have an application but would not because it was not raised before the Tribunal, would have potentially broad consequences given there is no necessary access to legal representation by people in the position of the appellant. He did have some representation in this case. But, if that obligation applies, as we say it does, we say that it should not have been dependent on having been raised by an analogy to Teoh – the decision in Teoh – it was not raised before the Tribunal. It did not come up in that case until the Full Federal Court considered that question. And, nevertheless, it was regarded as an obligation or as a matter giving rise to a legitimate expectation that it should have been considered.

Alternatively, her Honour Justice Gordon looked at it as a question – looking at the best interests of children in a case like this is so important that one would need not to even be prompted to look at something like the Convention. Her Honour had a different foundation in that case for saying that the best interests of children would be engaged and considered.

NETTLE J: I am sorry to harp on this, but do you go as far as to say that whenever the interests of the child are logically apparent as a relevant consideration, it is incumbent on the Tribunal to question the subject as to factors which conceivably might bear upon the interests of the child? Or, is the Tribunal permitted, in the absence of evidence being adduced or submissions made by counsel for the subject, to assume that there is nothing relevant to be considered on the matter?

MS HARRIS: If it was entirely silent on the issue, your Honour, I accept that the Tribunal would not have an obligation to consider the interests of a child who was not raised. But plainly the existence of the child, the fact that the child was a dependant and that the child would have to relocate with the appellant was before the Tribunal.

NETTLE J: So it was incumbent on the Tribunal to go through a checklist of medical language, childcare and the other sorts of things that you mentioned earlier on?

MS HARRIS: It may not be a checklist, your Honour, but it is the consideration of the particular circumstances of the appellant and whether it is practicable for them to relocate and that does require a positive finding. To say that one could look at the practical circumstances of a person like the appellant who will be taking his dependants, including his child, with him without considering that and without asking a further question if nothing further is said – because the appellant’s position of course was, “I cannot relocate. It’s not practicable for me”. There was a question which was asked in the course of the interview. This is appeal book 136:

MR FISHER: I don’t understand why it’s impossible. Are you talking about the transport logistics? Why would that be impossible?

THE INTERPRETER: It’s impossible. Where do I go? I have no friends, nobody to support me. How would I settle myself down there and then ask my family to come.

MR FISHER: Okay. So it’s really about you, the impossibility of you relocating rather than getting your family there?

THE INTERPRETER: Yes, for us the situation is very worse in Pakistan.

Now, clearly the appellant has said, “I have to somehow – I’m saying it’s impossible for me to relocate, and then my family is going to come as well and that’s equally impossible”.

So, it is put to the Tribunal and then there is a question that really goes nowhere:

the impossibility of you relocating rather than getting your family there?

THE INTERPRETER: Yes, for us the situation is very worse in Pakistan.

So, for the Tribunal to have come to a conclusion about relocation without turning its mind in any way to the situation of the family is not just – it does not impose a heavy burden on the Tribunal, it just raises the query, how could the Tribunal have come to that decision without accepting that a material basis for its conclusion that relocation was reasonable and practicable had to be consideration of how the appellant – with a family – would relocate.

GAGELER J: Ms Harris, you may be about to deal with it – and you may have dealt with it in-chief but it escaped me – how do you deal with Mr Kennett’s preliminary point that the Convention on the Rights of the Child is not incorporated into Nauruan law in a way that binds the Tribunal in its determination of a claim for complementary protection based on the International Covenant on Civil and Political Rights?

MS HARRIS: I accept that the Convention on the Rights of the Child is not incorporated into Nauruan law. It is a party to that Convention. The basis on which we have put it is that a task for the Tribunal – the task for the Tribunal is to determine, first, whether the applicant is to be recognised as a refugee and this Tribunal says you would be because there is a real risk of harm to you for Convention reasons, except you can relocate with your family.

That is question 61A and the other question is whether the person who has made an application under section 5 is owed complementary protection. Complementary protection is defined as protection for people who are not refugees as defined in the Act but also cannot be returned or expelled to the frontiers of territories where this would breach Nauru’s international obligations.

If we start at the point – I understand it is contested – that one of Nauru’s international obligations is an Article 3 obligation to consider the best interests of children in all actions concerning children, and this is an action concerning children, how can the Tribunal make a determination that there will be no complementary protection owed with no indication that at any point in the process will the best interests of the child, as required by Article 3, be considered.

If the Tribunal itself is not bound under the broad statement in section 4(2), the Republic must not expel or return any person to the frontiers. If that is not understood to engage the Tribunal as an emanation of the Republic, taking action which could have the inevitable consequence, meaning that person is returned to the frontiers of Pakistan – that is the first way we put it.

GAGELER J: Sorry, just say that again.

MS HARRIS: The obligation that the Republic must not expel or return any person to the frontiers of territories in breach of its international obligations.

GAGELER J: You say Republic includes Tribunals.

MS HARRIS: It includes all arms of the Executive and we understand that it will not be the Tribunal physically arranging for the removal of the appellant from Nauru to the territory of Pakistan but its decision is a fundamental authorisation for that to occur.

GAGELER J: Is there another way you would put it?

MS HARRIS: The other way we would put it is that if section 4(2) cannot apply to the Tribunal, nevertheless, as the respondent says, the Tribunal has an obligation to determine whether there are complementary protection obligations. Complementary protection obligations prohibit return, according to the definition in section 3, where this would breach Nauru’s international obligations.

GAGELER J: Where the return would?

MS HARRIS: Where the return would. This is putting aside my first argument. If the Tribunal is considering the question of complementary protection and it accepts for the purposes of this argument that Article 3 is one of those international obligations it must be satisfied that at some point before return the best interests of the child have been considered by the Republic of Nauru.

There is nothing in the statutory scheme that would suggest there is any place for that consideration other than by the Tribunal, and possibly on appeal to the Supreme Court, but that is not the assumption the Tribunal would obviously make. So the statutory scheme does not provide for a second step at which international obligations would then be considered also, if there is this international procedural obligation that we say there is pursuant to Article 3. The statutory scheme puts that part of that obligation on the Tribunal because it is the actor of the Republic of Nauru that is empowered to consider that question.

I am very conscious of the time, your Honours. The only other point I would make is that the distinction of this not being a discretionary decision is, in our respectful submission, not grounded anywhere in the international jurisprudence or the terms of Article 3.1. It simply requires that in all actions concerning children, whether by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. It

does not require them to be weighed. It does not say in any discretionary decisions or qualify the scope of the actions concerning children in any way.

So, our submission is that the fact that the decision involving a question of relocation is not a discretionary one is not to the point. The point is that the decision involving relocation requires close analysis of the particular circumstances of the individual to see if it is reasonable and practicable to relocate and in that question plainly interests of children would play a significant role. If the Court pleases.

KIEFEL CJ: Thank you. Yes, Mr Broadfoot.

MR BROADFOOT: Your Honours, in relation to grounds 2, 3 and 4, or proposed ground 4, there is a proposed amended notice of appeal which your Honours will find at pages 250 to 251 of the appeal book.

KIEFEL CJ: Do you require leave in relation to grounds 3 and 4 - certainly 4?

MR BROADFOOT: Certainly 4.

KIEFEL CJ: The question is whether - - -

MR BROADFOOT: And 2 there is no objection to. There is a minor amendment to the wording.

KIEFEL CJ: The respondent says you need leave in relation to ground 3, I think.

MR BROADFOOT: I think so, yes. Your Honour, dealing firstly with ground 2 – we address this in our written outline at paragraphs 47 to 54 and we rely on those submissions. I wish, simply, to make a couple of observations, in particular, in relation to the error that the Court will find in paragraph 68 of the Tribunal’s reasons at page 192 of the appeal book, under the heading, “Refugee assessment”. The Tribunal there says:

Having regard to all of the evidence and findings above, the Tribunal finds that the applicant does not face a real possibility of persecution . . . in Sri Lanka because of an imputed political opinion, his race or his membership of particular social groups comprising his family, young Tamils from the north, failed Tamil asylum seekers, Tamil returnees, persons who left Sri Lanka illegally or young Tamils separately and cumulatively.

NETTLE J: There has not been one word mentioned of Tamils or Sri Lanka before that passage in the judgment or reasons, has there?

MR BROADFOOT: Absolutely. That is correct, your Honour.

NETTLE J: Or, one after it?

MR BROADFOOT: That is correct as well.

NETTLE J: It seems like an aberration.

MR BROADFOOT: It does, but - - -

NETTLE J: Sir Harry Gibbs would have determined a falsa demonstratio.

MR BROADFOOT: One needs to bear in mind, in our submission, that we are dealing here with a three-member Tribunal. The Court should not accept, in our submission, that three members of this Tribunal adequately turned their minds collectively to the issues and the arguments and then published a set of reasons containing what is set out at paragraph 68. It would not be concluded – assuming that the decision was written together – that three members - - -

KIEFEL CJ: That is an assumption, is it not?

MR BROADFOOT: It is an assumption and I will come to the alternative assumption in a minute. It would not be concluded that had they sat down to write it together, that they could properly do so carefully and publish a set of reasons with this in it. Alternatively, even if one member wrote the Tribunal’s reasons in draft and the other two members of the Tribunal were to look at the draft reasons, it is inherently unlikely that the other two Tribunal members responsibly and carefully reviewed the reasons and actually thought about what was being said and then published a decision with a paragraph like that in it.

It was dealt with in the Supreme Court by saying that, taken as a whole, the decision record indicates that the Tribunal was alert to the applicant’s circumstances. We say with respect that the Tribunal’s obligation was more than simply to be alert to the particular circumstances of the appellant. This is a case where, to pick up a phrase used by Justice Greenwood – that is, another Justice Greenwood – in SZIFI, the Tribunal was required to adopt an undistracted, focused and deliberative assessment.

This is a case that is similar to the one considered by his Honour in SZIFI, which your Honours ought to have; it is in our list of authorities. The similarity is apparent if the Court goes to paragraph 12 of the reasons of Justice Greenwood, where the court notes that the decision of the Tribunal in that case reflects five pages of reasoning which ultimately led a short conclusion on the sixth page. The decision record recites matters such as the background legislation, et cetera. Then at 14, in that part of the decision record - - -

KIEFEL CJ: I am sorry, we are reading from the Australian Law Reports. I do not think there is a paragraph 14. I think it has been edited and it starts at paragraph 60.

MR BROADFOOT: It does not reproduce the reasons. I am sorry about that, your Honour. I have the AustLII printout here. In any event, the purport of the reasons is that the body of the findings described the individual’s circumstances correctly. Then, in the part of the reasons which deals with the decision, the applicant in that case is referred to as a national of Indonesia, and the Tribunal concludes that it is not satisfied that there is a real chance of persecution should he be returned to China. The reasoning adopted by Justice Greenwood in relation to that commences at paragraph [43], which the Court should have hopefully.

GAGELER J: We have [43].

MR BROADFOOT: His Honour said:

Once it is established that the tribunal has asked itself the wrong question by, for example, asking whether it can be satisfied that the appellant faces a real chance of persecution should he return to the People’s Republic of China . . . the tribunal is seen to have failed to provide the appellant with procedural fairness and thus jurisdictional error arises -

At [44]:

The obligation to undertake an un-distracted, focussed and deliberative assessment of only those facts and circumstances referrable to the case of the appellant is an essential element of the discharge of the review function.

His Honour concluded in the following paragraph:

Notwithstanding that the tribunal has in its decision record reflected an analysis of the claims made . . . the erroneous references to Indonesian nationality and the notion of a well-founded fear of persecution should the appellant return to the People’s Republic of China can only lead to the conclusion that the errors have affected the exercise of the power.

We rely on those passages as applicable to this case and in our submission this was a stronger case because of the fact that it is a three-member Tribunal and one could not conclude that the kind of focused, deliberative assessment that is required has in fact been engaged in, if three members of the Tribunal sat down and published these reasons. It might be different if it was a single member tribunal but where there are three members one would not reach that conclusion.

NETTLE J: Mr Broadfoot, does paragraph 67 possibly constitute a point of distinction from SZIFI in that it is plain that the Tribunal was there having regard to the possibility of avoiding the claimed persecution if the man moved to another area in Pakistan. If I may say so, all of that analysis of evidence and facts which precedes that is a build up to it and all of it is directed to Pakistan and relocation in Pakistan.

MR BROADFOOT: Well, certainly we accept that paragraph 67 is directed to the situation in Pakistan as is the preceding - - -

NETTLE J: As is all that which precedes it, yes.

MR BROADFOOT: Yes, preceding sections. There is an error in relation to - - -

NETTLE J: Then when you go to 68 it begins with the words “Having regard to what has gone before”. Is it not apparent that there has been an analysis which has led to a conclusion, albeit that it is wrongly expressed as one about Sri Lanka rather than Pakistan?

MR BROADFOOT: Well, that is the issue, with respect, and we say one would not reach that conclusion where this is what purports to be effectively the ratio of the decision where all of the findings are drawn together to support a conclusion.

KIEFEL CJ: Paragraph 68 really is simply stating that the applicant does not fall within the definition of “a refugee” because of what goes before, so when you are talking about what the Tribunal considered, it is the what goes before that is really important. This is just the conclusion, and it might have got there because it was somewhere else, because that is the clause that is often used to state the ultimate opinion that he does not satisfy the definition of “refugee”. But if you are saying that the Tribunal has not turned its mind properly to his case, it is to paragraphs 67 and what goes before it that you would need to have regard.

MR BROADFOOT: Well, we would say that 68 does more than that, your Honour, because of the words commencing with “because of an imputed political opinion”. It then goes on to identify factors that - - -

KIEFEL CJ: Well, they are the words of the Refugee Convention.

MR BROADFOOT: Yes, and they are applied in the remainder of the sentence in relation to Tamils, Tamil asylum seekers, et cetera. In relation to the corrigendum, your Honours, in our submission – and the corrigendum came out some six months after the decision. The Tribunal was functus officio and the - - -

KIEFEL CJ: That is not really relevant though, is it? There either has been a failure to consider, or not. What it did afterwards really does not - - -

MR BROADFOOT: Well, our learned friends say that this Court should look at the corrigendum.

KIEFEL CJ: Very well.

MR BROADFOOT: We say there are a number of statutory factors that indicate that the legislation is inconsistent with the existence of a power to issue a supplementary set of reasons in effect, or a substituted set of reasons. Section 33 requires the Tribunal to complete its review within 90 days. Section 34 identifies powers that the Tribunal has and, in particular, section 34(5) says that a decision on review is taken to be made - - -

KIEFEL CJ: Mr Broadfoot, where does the respondent say that it is necessary to refer to the corrigendum? I am looking at paragraph 36 where it says that it has become necessary to refer to it.

MR BROADFOOT: I thought I saw in their note today, your Honour, paragraph 14, the Court may, if necessary, have regard to the Tribunal’s corrigendum as evidence.

KIEFEL CJ: This is the outline, is it?

MR BROADFOOT: The outline, yes. There is evidence of the Tribunal’s reasoning.

GAGELER J: But this was a document produced after the filing of the notice of appeal.

MR BROADFOOT: Yes.

GAGELER J: How does it get in the appeal book here?

MR BROADFOOT: Our learned friends say that it is evidence of the Tribunal’s reasoning.

GAGELER J: Was it admitted into evidence, was it before the Supreme Court?

MR BROADFOOT: It was not referred to by the Supreme Court. It was not relied upon by the Supreme Court.

GAGELER J: Was it before the Supreme Court?

MR BROADFOOT: It was before the Supreme Court. In any event, it is in the court book from the Supreme Court proceeding.

GAGELER J: Well, it is just a self-serving statement made in the course of litigation, unsworn.

MR BROADFOOT: Yes, well, if we lose the case on that point, I would be surprised but - - -

GAGELER J: It cannot be a document of any weight. I am speaking for myself, provisionally, of course.

MR BROADFOOT: If the Court pleases. I will not labour that point. In any event, the statute is, we say, inconsistent with the existence of a power to publish more reasons after the event, especially after a notice of appeal has been lodged.

Ground 3 - the proposed notice of appeal has an error that I do need to correct. At page 251, the last word in ground 3 is “Karachi”. It is said that the children lived in Karachi. That is incorrect. On his evidence, he had been living in hiding. In our submission, it follows from the fact that the Tribunal referred to the appellant relocating to the Punjab province that it accepted that, but for the risk of harm that he faced in Karachi, he otherwise would return to Karachi where he had lived for most of his life. The Tribunal did not say specifically where in the Punjab province would be reasonable, or anywhere else. It did not reject his evidence that, when he had previously been living in that particular place in the Punjab province, he had been living in hiding.

That evidence the Court will find at appeal book page 45, paragraph 19 and appeal book page 130, line 44. There was no challenge or suggestion that the evidence was untruthful or any adverse credit finding in relation to the fact that when he was living in that particular place in the Punjab he was living in hiding. It may be that that was because they thought he was Sri Lankan.

But, in addition, the appellant gave evidence that he had a wife and two children who are dependent upon him. The Court will see that at appeal book, page 44, paragraphs 9 and 54. He needed to provide for his children’s educational needs and look after them – appeal book page 174, line 19. He was concerned about relocating because that would force him to take his children with him and he said he thought that would expose him to an increased risk of harm. That was at appeal book page 47, paragraph 35. He pointed out that his children and his wife – the evidence was that his children and his wife lived in a place where, upon the appellant’s unchallenged evidence, he had been in hiding. That is at appeal book 181, paragraph 9.

It follows, we say, that it would not be reasonable to require him to relocate to that particular place where, on the evidence, he had been hiding. So it must follow that the Tribunal thought he could relocate to somewhere else in the Punjab.

But they did not say where, which, in our submission, is an error because it demonstrates a failure to consider the particular circumstances of the appellant. In support of that we rely on Justice Hayne’s decision in M13 [2011] HCA 23; 277 ALR 667 at paragraph [22] where his Honour remarked upon the fact that the delegate’s reasons in that case made clear that the particular circumstances of the plaintiff in that case had not been considered because of the fact that the delegate did not know from where the plaintiff would have to relocate:

The particular circumstances of the plaintiff not having been considered, the delegate did not correctly identify a question that had to be answered -

In our submission, the reasons in this case do not deal with the effect of relocation upon the appellant’s children, assuming that he was not to go back to the place where he had been hiding, and he did, as I have said, say that relocating would cause him to take his children with him. As I have said, if they were suggesting that he should return to the place where he said that he had been hiding then that would be unreasonable in circumstances where there was no rejection of the evidence that he had been hiding.

Part of the problem perhaps, is that the reasons are a little difficult to follow. The overall conclusion in relation to complementary protection is dealt with in the very brief sentence in paragraph 69 of the reasons, which is at appeal book 192, and that just says “for the reasons set out above”. In our submission, the failure to identify and deal with specifically to where the appellant could relocate and his children’s circumstances evidences error.

In our submission, to the extent that we need leave to deal with that argument the issue is one that turns on the reasons. No additional evidence is necessary and there is no relevant prejudice to the respondent in the argument being permitted. In those circumstances, given the importance of the issue, the Court should entertain the point.

In relation to ground 4, this relates to the Tribunal’s findings at paragraphs 57 and 59 of its reasons at appeal book 190, in particular, the first sentence in 59 which refers to:

the absence of MQM power and influence in Punjab –

In our submission, it is clear from the reasons that the evidence that the Tribunal relied on to make its finding as to the absence of MQM power and influence in Punjab is that which is referenced in paragraph 57, footnotes 10 and 11. There are two documents that the Tribunal relies on.

In our submission, the Court should look at those documents which are brief and which are reproduced at pages 259 to 260 of the appeal book and 301 to 302 of the appeal book. We accept that they were not put before the Supreme Court but in our submission it is clear that these are the documents that the Tribunal did rely on and, in our submission, a fair reading of those documents does not justify the conclusion that there was an absence of MQM power and influence in Punjab though if I may take the Court briefly to page 259 - sorry 260 is the document. It is a Canadian Immigration and Refugee Board publication.

This is the document that is the subject of footnote 10. It is a summary of some work undertaken by the Economist Intelligent Unit. Your Honours will see, at about line 38 on the page, reference is made to the fact that:

on their Web site, the MQM claims to be the “third largest political party of Pakistan and the second largest political party in the southern province of Sindh”.

KIEFEL CJ: What about at 43:

It is the third-largest political party, although its support base is largely confined to Urdu speakers in the main cities of Sindh, particularly Karachi and Hyderabad.

MR BROADFOOT: Yes, and, in our submission, the proposition that its support base is largely confined to Urdu speakers in the main cities of Sindh, Karachi and Hyderabad, does not equate to or justify a finding that the organisation has little or no power outside Sindh. It goes on to say that:

the MQM is the “foremost among the ethnic based politico-terrorist formations in Pakistan” -

The other document relied on, your Honour, is at 301 to 302 - - -

KIEFEL CJ: There is quite a lot of reference to the Punjab in this.

MR BROADFOOT: Yes, and this is an article about the recent lack of electoral success by the MQM in provincial elections.

KIEFEL CJ: Line 35:

failed to make its foothold –

in the South Punjab.

MR BROADFOOT: Yes, in reference to the elections. Your Honour, again, our submission is that a lack of electoral success does not equate to or justify a finding of little or no power or influence.

NETTLE J: It is something about which views might perhaps reasonably differ though, is it not, Mr Broadfoot. You have got to show that it is just not open on any reasonable view of the evidence to come to the conclusion that they did.

MR BROADFOOT: The point is either right or wrong. I have got to accept that.

KIEFEL CJ: It is a no-evidence point. It is not what weight and how much evidence there is.

MR BROADFOOT: We certainly accept that, yes, yes. In our submission, to rely on those documents is also, in any event, inconsistent with other findings that the Tribunal has made. For example, at 57, it accepts that the MQM has a presence in Punjab.

KIEFEL CJ: Is this another ground?

MR BROADFOOT: No, no. This is related to that ground because it demonstrates – it highlights the error in relying on those documents to justify that finding because at 57 it says that the MQM does have a presence

in the Punjab. And, at 54, it refers to evidence with apparent approval to the effect that the MQM is, reportedly, allied to the Pakistani military. So, given the presence in the Punjab, it is difficult to justify the conclusion, in our submission, based on those documents, that there was little or no power or influence.

So overall, if the Court pleases, our submission is that the evidence did not support the finding of 57 and if the Court is minded to consider the ground, and we say it should for the reasons given, the appeal should be allowed on that basis.

Finally, your Honour, we do not accept that we would need to demonstrate the absence of evidence in any other document that might have been before the Tribunal capable of supporting that finding in circumstances where it is clear, we say, from the reasons, that those two documents that were relied upon to justify that finding. If the Court pleases.

KIEFEL CJ: Mr Kennett, we do not need to hear from you in relation to grounds 3 and 4.

MR KENNETT: If the Court pleases. I can be brief on ground 2. Your Honours were taken to passages in SZIFI, including paragraph 43, which begins with the premise that it is established that the Tribunal has asked itself the wrong question, and so on. Our submission essentially is that that premise is not made out here.

If the ground is that the Tribunal asked itself the wrong question, then the very thorough analysis throughout its reasons of the appellant’s claims and its circumstances in Pakistan indicates strongly, we say, to the extent that references to other countries have crept into the published reasons they are, in effect, proofreading errors and are not evidence which establishes as a matter of fact that extraneous material has been considered.

One does not get to the issue of principle that was considered in SZIFI. One has a thorough set of reasons that deal with the claims advanced and the circumstances giving rise to those claims and one has, as I have said, in effect, a proofreading error or errors. If, alternatively, the ground is that the Tribunal failed to conduct a review by failing to turn its mind to the circumstances of the case in a focused – I forget what the other adjectives are – genuine, focused way, then that too is negatived by the lengthy discussion, as your Honour Justice Nettle pointed out, leading up to paragraph 67, in which the Tribunal does exactly that.

The Court can be comfortably satisfied, we say, that the mistakes that crept into the published reasons are not indicative of any error of a kind which would vitiate the Tribunal’s decision. If necessary, we have made the submission that the Court could have regard to the Tribunal’s corrigendum. Appreciating what your Honour Justice Gageler says about its weight, the argument is put in paragraphs 36 and 37 of our written submissions.

We readily accept that the Tribunal’s decision-making function was at an end when it published its decision and on the assumption that the decision be valid, which our friends contest, the Tribunal had no power to reopen it and make a different decision. But that does not mean we say that there was anything to prevent the Tribunal making a statement to the court or anybody else, seeking to clarify the reasons why it had made that decision.

GAGELER J: Mr Kennett, there are a lot of – well, not a lot of cases – but there at least two or three cases that went to the Full Court of the Federal Court in the 1990s that dealt with decision-makers coming along and attempting to spruce up their reasons after legal proceedings had begun and those documents were simply not admitted into evidence on the basis that they were self-serving hearsay. It was said if the decision-maker wanted to explain their reasons they could always go in the box. Was this document actually admitted into evidence?

MR KENNETT: It was, your Honour. The set of problems that your Honour adverts to of course are real and we touch on them in paragraph 37. So the first question is, was the Tribunal entitled to make this statement? We say yes. It was not precluded. The second question is, is it capable of being admitted and had regard to? The short answer is that it was admitted. We have given a transcript reference in paragraph 37 of our written submissions which I hope, in the annotated version, has become an appeal book reference.

So it is referred to on appeal book page 219, line 40. There is a reference to it as being contained in the book of documents and then at page 221, line 7, the book of documents is tendered apparently without any objection. So our understanding is that it went in - - -

NETTLE J: Without objection.

MR KENNETT: Without objection.

NETTLE J: So it is too late to raise the point now for the first time.

MR KENNETT: Quite so. So it is in. Your Honours can make of it what you will and I accept it is not sworn and after the event it might be thought to be self-serving.

NETTLE J: Would it have been open to Nauru to put those members of the Tribunal in the box to give evidence as to whether they had made an error?

MR KENNETT: I know of no reason why not.

NETTLE J: So the evidence, were it in corrupt form, would have been admissible anyway. It is only a question of form that makes it inadmissible or would otherwise make it inadmissible but for the concession.

MR KENNETT: Yes. Certainly on our primary case in relation to ground 2 your Honours do not get to any of this interesting stuff.

NETTLE J: You are the one who has gone back for it, Mr Kennett, if I may respectfully say so.

MR KENNETT: We say that if you read the reasons it is fairly plain what occurred, but if your Honours were not with us on that we would seek to bolster that by reference to the corrigendum which we say the Court can look at. It may not be a compelling document in itself but it could have enough weight to get us over the line if we got there.

But that is what I wanted to say. Of course, we rely on the written submissions in relation to the other aspects of ground 2 which our learned friends did not develop and so neither will we. That is what I wanted to say about ground 2, your Honours, and so if your Honours do not wish to hear from me on the remaining grounds, those are the Republic’s submissions.

KIEFEL CJ: Thank you. Anything in reply, Mr Broadfoot?

MR BROADFOOT: Just in relation to the characterisation of the errors as proofreading errors, in our submission, it would not readily be concluded that three members of the Tribunal, charged with publishing a decision of this nature properly read, let alone proofread, the reasons given what is said in paragraph 68 and it is the paragraph that is ultimately dispositive of the case. In relation to whether the documents, the corrigendum, was tendered, 221 is the transcript. Counsel for the Republic says, we would seek to have that book of documents tendered to her Honour.

It is not quite clear whether her Honour is accepting the tender or not, from that transcript and, in any event, this is a case where the appellant was unrepresented in the Supreme Court and, in our submission, it was not open to the Tribunal, given the statutory scheme and the requirement to conclude its decision-making within timeframes, to publish in effect substituted reasons after the event was beyond power and the sections we

rely on in the Act in support of that are section 33, section 34(45), section 43(3) and section 51(6).

NETTLE J: Is there a slip rule section in that Act?

MR BROADFOOT: I have not seen one, your Honour.

NETTLE J: Thank you.

MR BROADFOOT: It must be a substantial slip if it is a slip that we have cited it. Thank you, your Honour. If the Court pleases, those are the submissions.

KIEFEL CJ: We will start the next matter then, Mr Burnside.

MR BURNSIDE: If the Court please, it is self-evident that we make these submissions on the assumption that complementary protection is found not to be available. Can I first draw the Court’s attention to the key points which were made by the appellant, who was found to be a credible witness at paragraph 24 of the Tribunal’s reasons.

At appeal book 33 to 36 he made a statement which supported his application for refugee status and, relevantly, at page 35 he said at paragraph 22:

I fear I will be captured, killed and tortured in Nepal. I do not want the same fate as my brother .. or my uncle ..

23. I fear my family will be seriously harmed. They have already been harmed because of my political profile in terms of the mistreatment my wife and mother were subjected to and the discrimination we face accessing essential services.
    

. . .

27. I will not be safe anywhere in Nepal. The Government has effective control of Nepal. I will not surrender expressing my political views and therefore will be harmed by NCPM members in other localities.
    

He also dealt with the same matters at page 112 of the appeal book. This was a statement that he made which was received by the Tribunal. Under the heading “Relocation”, at paragraph 69:

In Kathmandu, I am still at risk of harm. The whole time that I was in Kathmandu in 2013, I was in hiding. I hid in a hotel. I cannot hide in Kathmandu forever – how can I work or have a life?

He then goes on to point out that he does not know where his uncle is at the moment because they have lost contact since he went into hiding. At 71:

My wife is currently hiding in Nepal, but this will not be a sustainable solution to her problems for very much longer. I know she is still in danger, but I do not know how to help her all the way from Nauru. I am very worried about her, and the safety of our child. He is currently unable to attend school because of the dangers they are facing.

I am at risk of harm throughout Nepal. As a member and supporter of the RPPN, I will be persecuted by the Maoists throughout Nepal, including Kathmandu.

He was asked questions about this in the Tribunal, specifically at appeal book pages 147, 149 and 151. At the foot of 147 – speaking through the interpreter – he tells about being attacked at home:

After that attack, I was in the hospital and after two days of my discharge from the hospital, so I found that my house was burned down and according to my wife, they were telling that I was not back home after the treatment, so they burned down, what she said.

Then, at 149, at about line 36 – again through the interpreter:

According to them, they were forcefully dragged out and they’re stating that –

“They”, I think, from the context, is his wife and child:

“Your soul is not following us,” and they just draged out and burned down the house. And for my wife also, they just told that, “We have told your husband to follow us, but you are not listening us.” Sorry, this was from my mother, not from my wife. So they told that, “He is not following us.”

The Tribunal member said:

Right. So the Maoists actually took the occupants – your mother, your wife and your child – out of the house before they burned it down?

THE INTERPRETER: They forcefully dragged them out, what they said.

Then, at 151, at the top of the page – after saying that he stayed at Baglang with his parents for three months – the Tribunal member:

So you stayed with them for three months. But if nothing happened to you in three months, why did you feel the need to go to Kathmandu?

Through the interpreter:

I was not – I couldn’t go openly outside and also, I was scared that the Maoists are also there and they can – they may know me. So I was just scared.

So he said repeatedly that in the various places that he went to he was not safe. As I say the Tribunal found him to be a credible witness. The question for the Tribunal, in our submission, was, is there a safe place of internal relocation? Is it reasonable – in the sense of practicable – for him to relocate there? What is important is for the Tribunal to take into account the specifics of a particular place of potential relocation to see whether it was reasonable – in the sense of practicable – for him, in his circumstances, to be relocated to that place. The particular matters that he had - - -

KIEFEL CJ: Which ground do you - - -

MR BURNSIDE: I am sorry; this is ground 1. They did not take account, we say, of his objections to relocation.

GAGELER J: Mr Burnside, let us take 151. He is expressing a subjective fear - granted.

MR BURNSIDE: Yes. Then, having expressed the fear of being anywhere else in Nepal, it was then incumbent on the Tribunal to say, “Let us have a look at what your concerns are and let us identify a specific place where you could be relocated and see whether that would be practicable for you”. That is the approach which has been endorsed by numerous decisions of this Court and other courts in Australia as the test for internal relocation.

It is not just saying, “Well, you will be okay. Back you go. The harm you are worried about is purely local”. He made it very clear that he was concerned about his safety anywhere in Nepal, and that means that the Tribunal ought to have considered that aspect of his claim and should have considered specifically whether it was practicable for him to relocate to any specific, identified area.

They had the report on conditions in Nepal. It is identified as exhibit 3. It starts at page 195 of the appeal book. What I want to do is to go through that, probably not this afternoon, but we will see how we go. What I was about to do was to refer the Court briefly to the particular aspects of his claim. We make the point at paragraph 33 of our written outline that the internal relocation principle has the two aspects that I have mentioned: first of all, whether there is a place internally where he could relocate. The Tribunal did not touch that question at all. The second is whether it would be reasonable in the circumstances for that person to relocate to that place.

What the Tribunal did, it seems, is to consider that, (a), the threat to him was localised - although that flies in the face of the evidence that he gave – and to say, “Well, you can live anywhere else you want,” even though that does not take account of his circumstances; namely, the troubles being experienced by his wife and his child and his relatively limited skills. It takes no account of those at all.

He gave evidence which was accepted that his only occupation until that time had been as a self-employed farmer and as a driver. His farm, which he cannot return to, is in the very area that the Tribunal accepted would be dangerous for him. There was no attempt by the Tribunal to investigate whether he could safely get occupation as a driver anywhere else in Nepal.

The evaluation of the prospect of internal relocation is highly fact specific and perhaps the clearest case which illustrates that is MZANX, which the Court was referred to earlier, and in particular at paragraph 51, where her Honour said:

In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment.

As your Honour Justice Nettle commented, it is an evaluative question and it cannot be evaluated without reference to the facts.

KIEFEL CJ: But the Tribunal made a finding at paragraph 34 that in relation to Nepal:

only the immediate area around Benni in the Myagdi district is dangerous for the applicant –

and that no harm befell him when he stayed in Baglang or Kathmandu. That is fairly fact specific.

MR BURNSIDE: It is fact specific and it is plainly wrong because - - -

KIEFEL CJ: That is not your point, on ground 1.

MR BURNSIDE: He made it clear in his evidence, which they accepted but apparently had forgotten about, that he was in hiding in Kathmandu, he was in hiding in Baglang. So the fact that no harm befell him in those places is no matter of surprise, but he cannot be expected to relocate in a country and hide. All the authorities are against that.

KIEFEL CJ: But the Tribunal at 39 finds that, apart from those areas, elsewhere in Nepal is open to him. That is its findings. It does not have to go through point by point every matter that is raised by an applicant. The law is very clear about that.

MR BURNSIDE: Sure, but in the circumstances where he has said that there is nowhere where he would be safe and where they are saying internal relocation is possible, then - - -

KIEFEL CJ: But the Tribunal clearly does not accept that, because no danger befell him.

MR BURNSIDE: They say no danger befell him but they overlooked the fact - - -

KIEFEL CJ: Sorry, no harm.

MR BURNSIDE: No harm befell him but they overlooked the fact that he was in hiding in those places where no harm befell him.

NETTLE J: Of course the other aspect of it is that they found that the difficulties with the Maoists had subsided over the period of time that had elapsed since he had left.

MR BURNSIDE: That is an interesting point. The document, exhibit 3, the United States Department of State report on Nepal for 2013, deals with precisely that. In particular, there are some rather concerning findings, starting at page 195, in particular lines 30 through to the end of the page, at 196, at line 12 through to the end of the paragraph, and at various other places which really deserve attention, through to page 200. There are repeated observations about the difficulties that have existed in Nepal during 2013.

It is heartening that the Tribunal thought that maybe things had improved, but there seems to be no evidence of that. What they are not

entitled to do, in our submission, is simply to ignore evidence from a witness they found credible and then make assumptions against the witness to the effect that everywhere is safe for him except where he came from.

In M13, which you were referred to, I think, by Mr Broadfoot, Justice Hayne made it clear that the Tribunal has to take account of the particular circumstances of the claimant. I accept what the Chief Justice says about the fact that the Tribunal made the findings it did, but to make the findings it did in circumstances where it says it accepts the appellant as a credible witness and in its findings appears to overlook evidence from that same witness - - -

KIEFEL CJ: What do you say about what the Tribunal noted at paragraph 17 of its reasons? The Tribunal seems to be aware that he said that despite the fact that no harm had befallen him in those places he was still frightened as he has been targeted.

MR BURNSIDE: Yes.

KIEFEL CJ: So they are aware that what he is saying.

MR BURNSIDE: They do not note that he stayed in hiding while in Kathmandu.

KIEFEL CJ: That is the point, is it?

MR BURNSIDE: That is part of the point. They also observed that while he is in Kathmandu, he observed, by chance some Maoists that he recognised from his own district. He though they might have been working in Kathmandu. However, seeing them revived his fears. Perhaps I can do more justice to your question tomorrow morning.

KIEFEL CJ: Yes. That might be a convenient time. The Court adjourns until 10.15 am tomorrow.

AT 4.16 PM THE COURT ADJOURNED
UNTIL THURSDAY, 8 FEBRUARY 2018