Applicant S154-2002, Ex parte - Re RRT

[2002] HCATrans 439

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S154 of 2002

In the matter of -

An application for Writs of Mandamus and Certiorari against REFUGEE REVIEW TRIBUNAL

First Respondent

PHILIP RUDDOCK, in his capacity as MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

Ex parte –

APPLICANT S154/2002

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 NOVEMBER 2002, AT 10.13 AM

(Continued from 30/8/02)

Copyright in the High Court of Australia

MR J.M PATEL:   If it please your Honour, I appear for the applicant.  (instructed by the applicant)

MR S.B. LLOYD:   May it please the Court, I appear for the Minister.  (instructed by the Australian Government Solicitor)

HER HONOUR:   I hold a certificate from the Deputy Registrar who certifies that she has been informed by the solicitor for the first respondent, the Refugee Review Tribunal, that it does not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs.  Now, the matter is ready to proceed today for an ‑ ‑ ‑

MR PATEL:   Yes, your Honour.

HER HONOUR:   Perhaps you could tell me what affidavits on which you move and we will take it from there.

MR PATEL:   Affidavit of the applicant sworn 22 April.

HER HONOUR:   22 April, yes.  Perhaps you had better read that.

MR LLOYD:   Your Honour, for the convenience of the Court I have set out some objections to the affidavit ‑ ‑ ‑

HER HONOUR:   Let me find it first.  Not 6 September?

MR PATEL:   We will come to that, your Honour.  The first affidavit that was filed with the initial order nisi was on 22 April.  This affidavit we rely mostly for the annexure that is RRT’s decision.  Apart from that, there is nothing in it.

HER HONOUR:   Okay.  Well, let me see.  Is there anything in that affidavit that is objected to?

MR LLOYD:   Yes, your Honour.  Paragraphs 3 and 4, if it is convenient for your Honour to have that.

HER HONOUR:   Well, 4 does not seem to be – I see, yes.  Well, 3 is simply a matter of submission and I will take it as such.  What is the objection to the chronology, Mr Lloyd?

MR LLOYD:   If it is meant to testify to the truth of the things in it, then it is objected to.  If it is just meant to set out when the applicant claims things happened and it is in the nature of a submission, then there is no objection.

MR PATEL:   That is true.  Basically, your Honour, this is just to give a bird’s eye view of the matter.

HER HONOUR:   Of the claims?

MR PATEL:   Yes.

HER HONOUR:   Yes.  Well, I will treat paragraph 3 as submissions and paragraph 4 will be treated as a statement of the claims made by the applicant.  So may we take that affidavit as read?

MR LLOYD:   Yes, your Honour.

HER HONOUR:   Subject to that, that affidavit has been read.  Yes.

MR PATEL:   Your Honour, an affidavit was sworn on 15 August 2002, but we are not relying on that one.

HER HONOUR:   Well, that is not read.

MR PATEL:   It is not to be read, yes.

HER HONOUR:   Yes.

MR PATEL:   The last affidavit filed was sworn on 6 September 2002.

HER HONOUR:   Sorry, 6 September?

MR PATEL:   September.

HER HONOUR:   Do you read that affidavit?

MR PATEL:   Yes, your Honour.

HER HONOUR:   Any objections to that?

MR LLOYD:   Yes, your Honour.  The same document I handed up has objections to five paragraphs at the end of the document.

HER HONOUR:   Well, tell me what they are.  I have documents everywhere, sorry.

MR LLOYD:   Sorry, paragraph 2, again it is just a question of that is a submission.

HER HONOUR:   Yes.

MR LLOYD:   Paragraph 8 purports to be a conclusion of law.  There are problems with the form.

HER HONOUR:   Well, in part it is argumentative, but what is the problem about ‑ ‑ ‑

MR LLOYD:   In my submission, the transcript which is being relied upon in paragraph 12 should just be allowed to speak for itself, what was and was not done at the Tribunal.  I mean, there is direct evidence as to what was said and what was not said.

HER HONOUR:   Well, a transcript is no more direct evidence than the evidence of the person who was there.  No, I will allow paragraph 8.  What were the other paragraphs?

MR LLOYD:   Paragraph 9, again a question of in part it is a submission, in part it is in an unfair form and the last phrase, starting from “and without”, is speculative because there is no evidence as to what would be said – what the author would have said and so with it suggesting that they would have had a benefit of what the author said.  We do not know what the author has or would have said.

HER HONOUR:   I will treat aspects of paragraph 9 as argumentative and to be the subject of submissions but, yes.  You do not object to 10?

MR LLOYD:   Paragraph 10, the same objections, form and speculation?

HER HONOUR:   Why?

MR LLOYD:   It speculates if the Tribunal had have done things, certain things would have happened, but there is no evidence that that is the case.

HER HONOUR:   If she had been able to comment, that is the explanation she would have offered.

MR LLOYD:   It says:

or had the Tribunal sought comments . . . the Tribunal would have appreciated –

something.  She cannot say “the Tribunal would have appreciated”.

HER HONOUR:   Well, no, there is a difficulty with form but it is a pedantic one.  It will be read as indicating that she would have explained.

MR LLOYD:   May it please the Court, yes.  Then paragraph 11 is again a conclusion of law submission, much like paragraph 2.

HER HONOUR:   Yes, I will treat that as going to submissions.  Yes.  Subject to those matters, Mr Patel, the affidavit can be taken as read.  You do not have any difficulty with the matters I have indicated?

MR PATEL:   No, I have none.

MR LLOYD:   I should indicate, your Honour, that I would seek to cross‑examine the applicant.

HER HONOUR:   Yes, very well.  Now, Mr Lloyd, you are going to have to tell me how we do this.

MR LLOYD:   I suppose if my friend calls his witness.

HER HONOUR:   How?

MR LLOYD:   She is here.

HER HONOUR:   Yes.  How do we call her?

MR LLOYD:   In terms of how is she to be sworn or ‑ ‑ ‑

HER HONOUR:   Yes.

MR LLOYD:   She is a Christian.

HER HONOUR:   No.  I have the difficulty about naming her.  How do I call a witness that has no name, to start with?

MR LLOYD:   I see, your Honour.  There is no, I think, particular problem with your Honour calling her.  The only problem is in publishing the transcript.

HER HONOUR:   Well, the transcript is the transcript.  If she is called by name, that will appear on the transcript.

MR LLOYD:   Your Honour could make a direction that the transcript be edited or expurgated to that extent.

HER HONOUR:   Does the Act say only transcript?  I do not think it does.  There are people in Court.  I am not going to close the Court.  I would regard it as contrary to the interests of the administration of justice to close the Court.  What is the section again?

MR LLOYD:   It might be stipulated that the person who takes evidence is the applicant without the need to mention her name.  I do not know that my friend can dispute that his witness is in fact his witness.  Also, the only difficulty is in a court publishing her name, not in anyone else publishing the name.  Having said that, of course, the Tribunal cannot publish the name either and the Department is under the Privacy Act obligations as well.  I do not suggest it is just the Court but, in my submission, section 91X is not meant to preclude the Court from hearing evidence from applicants.  It would be a reasonably easy matter for her to take an oath.  My friend can stipulate that she is the applicant and need not ask her her name and I need not ask her her name.  It will not then be in the transcript.

HER HONOUR:   Well, it is not obvious to me.

MR LLOYD:   The other possibility is, as my instructing solicitor suggests, she could be shown what her name is on one of the affidavits and she could adopt that as hers and the Court would know that it was her.

HER HONOUR:   Well, the best I can do is say this:  if there is in Court a person who believes herself to be the applicant in these proceedings, would that person please come forward.  I cannot do more than that.  You are the interpreter?  Well, perhaps the first course is for the interpreter to be sworn.

GNANAM RATHINAM, affirmed as interpreter:

HER HONOUR:   Before you swear this person, could the person in the witness box be shown this document and asked if she is the person who swore that affidavit.

APPLICANT S154/2002 (through interpreter):   Yes.

HER HONOUR:   Yes, thank you.  Would you please administer the oath.

APPLICANT S154/2002, sworn:

HER HONOUR:   Mr Patel, do you have any questions of the applicant?

MR PATEL:   No, not at this stage, your Honour.

HER HONOUR:   Yes, thank you.  Yes, Mr Lloyd.

CROSS-EXAMINED BY MR LLOYD:

MR LLOYD (through interpreter):   Yes.  Can I ask you in your proceedings in your protection visa application is it correct to say you were originally represented by the South Brisbane Immigration and Community Legal Service?‑‑‑Yes.

And when your first application was rejected by the Tribunal constituted by Mr Vrachnas you commenced proceedings in the Federal Court?‑‑‑Yes.

You engaged a firm of solicitors called Jamnadas & Associates, is that correct?‑‑‑Yes.

And you also had as counsel representing you Mr Zipser, who was here earlier today?‑‑‑Yes.

Now, after you won in the Federal Court, you engaged Mr Selliah, who worked with Jamnadas & Associates to be your migration agent, is that correct?‑‑‑Yes.

Did you choose Mr Selliah because you understood him to be a good and experienced migration agent?‑‑‑I had 28 days within which to appeal and when I was looking for a lawyer, he was the one that I was able to approach.

After you won the appeal and you went back to the Tribunal, Mr Selliah helped in you the Tribunal, is that right?‑‑‑He was my lawyer when the case was rejected also.

Certainly.  Do you know is Mr Selliah from Sri Lanka?‑‑‑No.

You do not know, or he is not from Sri Lanka?‑‑‑He is from Sri Lanka but I didn’t know him in Sri Lanka.  He is from Sri Lanka but I came to know him only here.

I understand that.  In your dealings with Mr Selliah has he ever told you that he has experience with making protection visa applications in relation to Sri Lankan people?‑‑‑

HER HONOUR:   What is the relevance – do not answer this – what is the relevance of this?  I am sorry, I just do not understand where it is going.

MR LLOYD:   It goes to the question of natural justice.  She had an experience ‑ ‑ ‑

HER HONOUR:   Yes.  Well, you say he is experienced.  I do not know this gentleman and if you want to establish he is experienced, it does not seem to me you can do it through this witness or by what he said to her.

MR LLOYD:   It is an ex parte – it is an interlocutory matter.  I mean, it is quite common to have hearsay evidence in those terms.

HER HONOUR:   To prove that he is experienced.

MR LLOYD:   One might suggest that if he told her that, that then it might be reasonable to suspect.

HER HONOUR:   Well, I would not have.  I mean, given what I have seen sitting in these matters, that is not an assumption I would make about anybody who appears in them, but I would want it proved strictly, but go ahead.

MR LLOYD (through interpreter):   Accepting what your Honour says, perhaps I will pass over that question.

Mr Selliah did appear at the hearing of the Tribunal with you when it was before Mr Blount, the Tribunal member?‑‑‑Yes.

After your application was refused for a second time, did you consult with Mr Selliah about challenging that decision?‑‑‑Yes.

Was it you or Mr Selliah who approached Mr Zipser on the second occasion to represent you in the Federal Court?‑‑‑I asked Mr Selliah what I should do next.  I have 28 days and I just couldn’t back to my country.  So I went through Mr Selliah again.

Do you know was it Mr Selliah who drafted your application to the Federal Court?‑‑‑Yes.

Then there was an amended application.  Do you know was that Mr Zipser who prepared the amended application?‑‑‑I don’t know.

HER HONOUR:   Was this – well, I will come to this later but you might bear it in mind.  It might be important to get the dates.  I do not have this material.

MR LLOYD:   In the affidavit of Ms Warner you have the original application and the amended application.

HER HONOUR:   Do I?  Well, we will come to that later.

MR LLOYD:   It is an affidavit of Ms Warner affirmed ‑ ‑ ‑

HER HONOUR:   On 11 June?

MR LLOYD:   ‑ ‑ ‑ on 7 June, perhaps filed on the 11^th.

HER HONOUR:   It is not 11 June.  This is an affidavit – yes, I have the dates in it, yes, thank you.  So we are talking, just so I can – about what happened on 15 October 2001?

MR LLOYD:   That is so, your Honour.  In the proceedings before Justice Wilcox.

HER HONOUR:   Yes, thank you.

MR LLOYD (through interpreter):   Did you attend the hearing before Justice Wilcox in the Federal Court?‑‑‑No.

You are aware, however, that you were unsuccessful in those proceedings?‑‑‑I don’t know anything about the law.  I just was not able to be present.

I understand that, but do you know – maybe if I ask a different question.  After you lost that case, did you seek advice from Mr Selliah or Mr Zipser about whether to appeal that decision or take any further action?‑‑‑No.

MR PATEL:   Your Honour, if I may take objection on relevance because we are going into the history of the previous proceedings that were ‑ ‑ ‑

HER HONOUR:   No, I think this is a question whether I might have regard to delay.  It seems to me to be relevant, but there are questions about legal professional privilege.

MR LLOYD:   Your Honour, she has given evidence that she did not get certain advice, so I am certainly allowed to test that.

HER HONOUR:   When did she give that evidence?

MR LLOYD:   It is in the affidavit of 22 April.

HER HONOUR:   That is not relied upon.  That was not read.

MR LLOYD:   No, that was the one of 15 August was not read.  The one of 22 April, paragraph 5, she says she “was not aware” of certain things.

HER HONOUR:   Yes, very well.

MR PATEL:   Your Honour, the objection I was taking was that we are going into the history of the proceedings that had been filed since the first Tribunal’s decision.  These are matters which appear like evidence‑in‑chief.  This evidence, if it was relevant, could have been adduced by way of affidavit by the respondent saying that this is the history of the matter and this is what they are relying on rather than ‑ ‑ ‑

HER HONOUR:   I think it is just to set the scene.  I will allow the question.

MR LLOYD (through interpreter):   So I think the question I had asked was did you get any advice from either Mr Selliah or Mr Zipser after you had lost that case about whether to appeal or any other steps you could take?‑‑‑No.

So you did not think about appealing that decision?‑‑‑I had only 28 days within which to appeal and I just talked to lots of friends and to find out what I could do.

And did you speak to Mr Selliah about what you could do?‑‑‑No.  My mother was sick.  My mother is in Brisbane and she was sick.  So I was distracted by that and I didn’t do anything.

So although you knew you had only 28 days you decided to do nothing, you did not seek advice from your lawyer or from your barrister in relation to anything else you could do?‑‑‑I had problems with finance also.  So because of that I couldn’t go to anybody.

Did you go to Mr Selliah and he said he would not represent you if you did not have money?‑‑‑It’s not that I didn’t go to him; I couldn’t go to him.  They said – people told me that I could appeal to the Minister since I didn’t have any money.  Can I talk?  Can I say ‑ ‑ ‑

HER HONOUR:   If you wish.

THE WITNESS (through interpreter):   So I have the letters which I forwarded to the Minister.

MR LLOYD (through interpreter):   Yes, okay.  Now, six months after you lost before Mr Justice Wilcox you commenced proceedings in this Court on 22 April, is that correct?‑‑‑I don’t remember the date – the time when I appealed, but this I knew was the way I had to do it.

You knew that was the way you had to do it, is that what you are saying?‑‑‑Not exactly.  I appealed to the Minister and then I didn’t know anything.  I don’t know anything about the law.

Can I ask who prepared your application to this Court?‑‑‑Because I had no money I couldn’t go anywhere and I approached Mr Patel through someone and he helped me.

Are you saying that Mr Patel drafted up the original documents for you?  Let me be clear.  Are you saying that Mr Patel drafted your application to this Court on 22 April?‑‑‑No.

So who prepared that document?‑‑‑I prepared it myself.

And how did you know what to put into that document?‑‑‑I had gone through my case and I talked with a few others and then I wrote it down.

So who told you that you could apply to this Court?‑‑‑Friends known to me.

When did they tell you that?‑‑‑I don’t remember.  I don’t remember all these things because of the problems I had.  I don’t remember dates.

HER HONOUR:   Perhaps you could ask what time it was in relation to the letter from the Minister.

MR LLOYD (through interpreter):   Well, perhaps if I ask.

Did they suggest you could come to the High Court before or after you wrote to the Minister?‑‑‑After I wrote to the Minister.

And did they tell you to go to the High Court before or after you got a reply from the Minister?‑‑‑I got a reply from the Minister refusing.

Yes, but did you know that you could go to the High Court before you got that reply or after you got that reply?‑‑‑I didn’t know, but I thought I will become illegal once I was refused by the Minister so I applied to the High Court.

When did the Minister reply to your letter?‑‑‑In March.

I think now that I will take you to a different line of questioning.  If I take you to the transcript of the hearing before Mr Blount – this is in relation to the decision you are now challenging, if I might pass this to you.

HER HONOUR:   Is this ‑ ‑ ‑

MR LLOYD:   This is the one which is marked transcript of N01/36975 on the cover.

HER HONOUR:   N01/36975.

MR LLOYD (through interpreter):   That is so, your Honour.

May I ask you to go to page 18 of that transcript.  Now, in the second paragraph beginning with the letter M in the second sentence of that paragraph it says – this is M the member saying to you – perhaps the interpreter can just interpret that.

THE INTERPRETER:   Which one is it?

MR LLOYD:   The paragraph beginning “I should say that most recent material”.

THE INTERPRETER:   I just asked her whether she understood.

MR LLOYD (through interpreter):   Thank you.  Now, would you agree that the Tribunal did expressly bring to your attention that report of the British Home Office?‑‑‑He didn’t show me any documents, but he mentioned at the hearing.

Certainly.  So, in your affidavit of 6 September you said that:

The course of inquiry and investigation followed by the Tribunal was procedural unfairness –

and this is the critical bit –

in as much as the Tribunal did not draw my attention to any specific evidence the Tribunal had in it’s possession and which the Tribunal intended to rely on –

Would you agree that that is wrong and that you were drawn to some evidence?‑‑‑They didn’t show me any documents.  They didn’t tell me from where they got it, otherwise I would have been able to research and give a reply.

You would have been able to do research and give a reply, but they told you the name of the document so you could have done research and given a reply?‑‑‑They didn’t give it to me at the hearing.

You did not ask for it at the hearing, did you?‑‑‑I didn’t know that it will happen at the hearing, this will happen.

At the hearing they mentioned this report, and I will go to other reports, they mentioned other reports – is it correct to say that neither you nor your agent asked to be given copies of any of the reports referred to by the Tribunal?‑‑‑I spoke to my lawyer about it, but I don’t know whether he made any request.

The Tribunal did give you an opportunity after the hearing to put in any further submissions you wanted, did they not?‑‑‑Yes.

I will take you to an earlier part of the same passage at page 18, the immediately previous passage the Tribunal says “The earlier decision also set out material” – now the earlier decision is the earlier decision in which you were in, the decision in relation to Mr Vrachnas:

also set out material to the effect that Sri Lankan authorities and security forces do not regard all Tamils as belonging to the LTTE.  And notwithstanding the security checks and questioning of people in the state of civil war Tamils are not generally persecuted simply because they are Tamils.

Now, what I want to ask you is, the Tribunal had referred to reports or material in the earlier decision of Mr Vrachnas.  You had a copy of that earlier decision, did you not?‑‑‑You mean in the information about the decision, do you say that there was information as to from where they got these reports?

What I mean is the Tribunal here is mentioning or referring to reports in a decision which you have already had which sets out the relevant parts of those reports.  I am asking you did you have a copy of – have you ever had a copy of the decision of Member Vrachnas, the original decision?‑‑‑Yes.

Would you agree with me that your migration agent also had a copy of that decision?‑‑‑You mean in South Brisbane?

No, I mean Mr Selliah?‑‑‑I spoke to him when I appealed to the Federal Court.

I understand that, but Mr Selliah had a copy of that decision.  He was your solicitor or your migration agent acting in the Federal Court challenging that decision, so would you agree that he did have a copy of that decision?‑‑‑Yes.

Now, the Tribunal, at this point, has put to you this proposition, has referred to the material, one specific new report plus other material, and it has given you an opportunity to comment on it, has it not?‑‑‑They only mentioned in the decision, but they did not tell so in the hearing.

Perhaps if I take you to the top of that page, page 18.  At the top of page 18, the second paragraph on what the member says:

I have to say that I have seen no reports of young Tamils for example in Kandy or Colombo being forcibly recruited to serve in the LTTE forces.

Now, the Tribunal said that to you.  You had an opportunity to provide any reports you wanted to provide, did you not?‑‑‑I didn’t know what was important and what was not important regarding my case.

You were relying upon your migration agent, were you?‑‑‑Yes.

In that same paragraph, the last sentence, the Tribunal member says:

The earlier tribunal decision set out in some detail some information to the effect that the JVP is no longer a threat to the safety of Tamils as it was in the late eighties.  Do you have any comment on that material?

Now, you would agree that you were told that that was an issue and you were given a chance to comment on it?‑‑‑I was not able to get any relevant materials.

Okay.  Can I ask you to turn to page 20, the third time the letter M appears on the left‑hand side:

I think there are no reports of Sinhalese mobs in Colombo since back to 1983 riots.

Would you agree that the Tribunal gave you an opportunity to comment on its belief that there were no reports or evidence about riots or Sinhalese mobs?‑‑‑This harassment by Sinhalese continued after ’83 and in ’89 it was there, I mention, and also in ’98 in Kandy, after the bomb blast.

I understand that you did make certain submissions to the Tribunal.  My question is just that you would agree that you were given an opportunity to comment on the Tribunal’s view?‑‑‑Yes, he asked me.

I ask you to turn to page 13.  At the very bottom, the very last line of that page the Tribunal member says:

The reports cited in the earlier decisions also refer to material that those who are particularly suspected by the security forces and receive particular attention are young Tamil males recently arrived in Colombo from Jaffna or the north – a profile you do not fit.
Do you have any comments on what I have just said?

You would agree with me that the Tribunal has again referred to reports in the earlier decision and gave you an opportunity to comment upon that material?‑‑‑He didn’t ask many questions.

I have nothing further, your Honour.

HER HONOUR:   Yes, thank you.  Any re‑examination, Mr Patel?

MR PATEL:   No, your Honour.

HER HONOUR:   Thank you.  Thank you, you may step down and thank you, Madam Interpreter.

THE WITNESS WITHDREW

HER HONOUR:   Is that your case, Mr Patel?

MR PATEL:   That is my case, yes, your Honour.

HER HONOUR:   Do you have anything, Mr Lloyd?

MR LLOYD:   Your Honour, I perhaps should read Ms Warner’s affidavit.  I think your Honour said you do have it.

HER HONOUR:   I found it once.  There has to be some better way of preparing these documents.

MR LLOYD:   My friend says it was read on a previous occasion and I think it was.

HER HONOUR:   This is the one to which I had regard earlier with the date?

MR LLOYD:   Yes, it is the one which has Mr Justice Wilcox’s judgment and an original application and then an amended application.

HER HONOUR:   Yes.  Well, I do not know where I put it.  Yes, I had it.

MR LLOYD:   I have another copy if your Honour ‑ ‑ ‑

HER HONOUR:   No, that will only confuse further.  Yes, I have it now.  Thank you.

MR LLOYD:   I would read that affidavit.

HER HONOUR:   Any objections?

MR PATEL:   No objections.

HER HONOUR:   Yes.  I will just quickly read it.  Yes, I have read that affidavit.

MR LLOYD:   And then the only other thing I will hand up in light of some questions I have just asked is a copy of the reasons of Mr Vrachnas, the original Tribunal member.

HER HONOUR:   What is the relevance of that?  I understand.  Do you have any objection to that, Mr Patel?

MR PATEL:   No objection, your Honour.

HER HONOUR:   Yes, thank you.

MR LLOYD:   I have no further evidence, your Honour.

HER HONOUR:   Yes.

MR PATEL:   Your Honour, in this matter we have filed written submissions on 6 September in accordance with your directions.

HER HONOUR:   Now, Mr Patel, I will tell you the two matters with which I am concerned.

MR PATEL:   Yes, your Honour.

HER HONOUR:   The first is the indication from the Tribunal member that he did not need to question your client about the incident at the police station and the psychologist’s report.  I know nothing about that psychologist’s report, do I?

MR PATEL:   No, your Honour, that has not been filed.

HER HONOUR:   I do not want you to file it at this stage, but I do not understand how it got there.

MR PATEL:   Just to give a general profile as to how it will impact on ‑ ‑ ‑

HER HONOUR:   No, but how did it get to the Tribunal?

MR PATEL:   The psychologist’s report?

HER HONOUR:   Yes.

MR PATEL:   That was tendered by the applicant in support of her case as to the trauma she had suffered in consequence of the persecution.  Just to outline, the psychologist had seen her and given her assessment as to the trauma she had suffered by reason of the persecution she had suffered in Sri Lanka and it was just a general report.  Unfortunately, that report is still on the file.  I did ask my client to get that report from the file and copies of the documents under Freedom of Information, but unfortunately she had problems and she was told it would take some time before she could get these documents.

HER HONOUR:   Was there any question asked of her relating to this psychologist’s report in the transcript?

MR PATEL:   No, there were no questions put to her.

HER HONOUR:   What exactly was said in the decision?

MR PATEL:   That is at page 14, your Honour, of the decision, that second paragraph, although in her original statement it starts from there.

HER HONOUR:   So it was tendered to the first Tribunal?

MR PATEL:   It was tendered to the first Tribunal, but all this material was also taken into consideration by the second Tribunal as part of the case evidence so the Tribunal had ‑ ‑ ‑

HER HONOUR:   It had the Department file.

MR PATEL:   Yes.

HER HONOUR:   Which included this?

MR PATEL:   Yes, it took into consideration all the material that was before him, including this report, but that was not specifically tendered to the second Tribunal, nor any mention was made.

HER HONOUR:   Can I take you to the last – I have to find it – the Tribunal decision, which I think I just had in my hand – yes.  I am sorry, I mean the Tribunal transcript, page 19, first paragraph, I suppose.  Was the first sentence, as you read it, a reference to the incident at the police station or include a reference to the incident at the police station?

MR PATEL:   Page 19?

HER HONOUR:   Yes. 

MR PATEL:   That is “the government is confronted”?

HER HONOUR:   The first one, “I have to think about that”.

MR PATEL:   I apologise, your Honour, I was looking at the wrong material.

HER HONOUR:   And then the Tribunal says – is this right:

I have to consider whether it is reasonable to accept that each of these was raised on previous occasions including before the Tribunal at the last hearing.

What do you make of that?

MR PATEL:   Your Honour, from the response that follows where she says:

One thing is I am scared to go back to Colombo.  The LTTE will recruit.  Police and army have already threatened me –

it appears from the response that it does not really answer the question.

HER HONOUR:   I do not know what the ‑ ‑ ‑

MR PATEL:   Yes, so that, perhaps, should have been pursued by the Tribunal because apparently either there was a misunderstanding or it can be ‑ ‑ ‑

HER HONOUR:   What was that Tribunal saying, that it is concerned as to whether they were “raised on previous occasions including before the tribunal”?  It seems to be an odd question.

MR PATEL:   It does.

HER HONOUR:   Because it was clear that it had not been raised before, was it not?

MR PATEL:   No, it does not appear to have been raised.

HER HONOUR:   No, but it is clear because did not the witness say this is something ‑ ‑ ‑

MR PATEL:   Yes, that came for the first time before the second Tribunal.

HER HONOUR:   Yes, where is that – raise something that I did not tell you before, or something like that?  Where is that?

MR PATEL:   Yes, your Honour.

HER HONOUR:   Where does the Tribunal say, “I don’t want to ask you any questions about that”?

MR PATEL:   Yes, I think it was just after the break.  There was a little – page 10 at M – eight.

HER HONOUR:   Yes, I see that now:

So far I have not revealed this to my mother . . . And in the future she should not know about this.

There is an implication, I suppose, that it is being raised for the first time.

MR PATEL:   Yes, I think that appears from the reasoning as well from the transcript that it was – it was raised for the first time.  What the Tribunal in its reasons say is that whether or not he should give any weight to what this has been raised for the first time ‑ ‑ ‑

HER HONOUR:   Well, that does not seem to be what that last paragraph is saying.

MR PATEL:   Yes, your Honour, I think the thrust of the reasoning of the Tribunal appears to be that these are the matters ‑ ‑ ‑

HER HONOUR:   Yes, I am just wondering – I do not understand that paragraph – that statement myself, or its significance in context, particularly when one has regard to “I don’t need to ask you any further questions about that incident”.  Anyway.

MR PATEL:   Yes.

HER HONOUR:   Yes, you need not address me further on the rape or the psychologist’s report, but at the moment I am not minded to grant an order nisi in respect of the country information, as it were.

MR PATEL:   Yes, your Honour.

HER HONOUR:   Unless you want to address me further on that.

MR PATEL:   Your Honour, I do not think I can take it further because I appreciate the difficulty that evidence has not been put forward as to what country information could have been.

HER HONOUR:   Yes.

MR PATEL:   So I appreciate that is something which cannot be taken any further.  The only two points we would make are while on the one hand it is true that the applicant bears the burden of showing how she would have approached the matter had this thing been revealed, and from the decision of the High Court in Muin it appears that that is one of the things which was taken into account.

HER HONOUR:   Yes, if you would ‑ ‑ ‑

MR PATEL:   But, nonetheless, we would like to put this, although take it no further than that, that if there is a procedural unfairness, the question is:  does it justify the end?  The result would not have made any difference whether or not the procedure was followed.  Does it mean that this Court should sanction or encourage to follow something that is procedurally unfair?

HER HONOUR:   Mr Patel, we operate in a very limited field in this area, as you know, but in any event ‑ ‑ ‑

MR PATEL:   That is a matter perhaps one day might be argued further as to whether or not the ends should justify the means and where there has been a procedural unfairness, maybe this was not the case where there was ‑ ‑ ‑

HER HONOUR:   If you want to tell me about procedural unfairness outside the area of the rape and the psychologist’s report, because I do not need to hear you on that further at this stage, please do so but you will need to spell out to me exactly how you say there was procedural unfairness outside that area.

MR PATEL:   I think I will just rely on my written submissions and I do not think I can really improve or add anything usefully to what has been said in the written submissions, your Honour.

HER HONOUR:   Thank you, Mr Patel.  Yes, Mr Lloyd.  You will have gathered from that I particularly want to hear you on the rape and the psychologist’s report.

MR LLOYD:   Certainly.  If I start with the rape incident, in my submission the question of procedural fairness has to be looked at – one cannot just look at the fact that at page 10 the Tribunal said, “I don’t need to ask you anything further” ‑ ‑ ‑

HER HONOUR:   If I had been appearing for the applicant and the presiding member had said that to me, I would have thought that has been accepted as fact.

MR LLOYD:   I accept that, your Honour, that at that moment that would have been a reasonable inference.

HER HONOUR:   And the only other reference seems to be, does it not, then at the end?

MR LLOYD:   Well, there are two other references ‑ ‑ ‑

HER HONOUR:   Yes, please take them to me.

MR LLOYD:   But perhaps before taking you to them, if I put it in this context.  The situation is that at the very first hearing certain claims were made and at the end of the hearing, when the Tribunal said it had no further questions, the applicant said, “I also fear forcible recruitment by the LTTE”.  So there was some mention of that issue but it was not detailed.  There was some discussion for about a page and the Tribunal, as fate would have it, foolishly did not mention it in his reasons and that led to that decision being set aside.

Then in this hearing, the applicant says at page 10 she wants to mention about the rape incident.  The Tribunal says it does not need to hear further on that.  We do not know what the Tribunal was thinking at that point in time.

HER HONOUR:   It is not a question of what the Tribunal was thinking.  I am not in the least bit concerned what the Tribunal is thinking.  The question from a procedural fairness point of view is what the applicant, but perhaps more significantly her representative, thought was indicated by that.  Ordinarily, if a court says that to you, a wink is as good as a nod and you sit down.  If I say to you I do not need to hear from you on the country information, you know what I mean, do you not?

MR LLOYD:   I accept that, your Honour, but my point is if, however, you look back on an entire transcript and a different picture appears such that ‑ ‑ ‑

HER HONOUR:   How?

MR LLOYD:   Well, that is what I want to come to.

HER HONOUR:   This is the first time she mentions this.

MR LLOYD:   This is the first time she mentions it.

HER HONOUR:   The very first time.

MR LLOYD:   The very first time.

HER HONOUR:   All right, and then ‑ ‑ ‑

MR LLOYD:   And the Tribunal, for whatever reason, says what it says.

HER HONOUR:   It says that and then ‑ ‑ ‑

MR LLOYD:   And then what happens is a few further pages go on where there is discussion about various other things, about the Maldives and so on and so forth, and then comes another new claim about ‑ ‑ ‑

HER HONOUR:   No, do not worry about the new claim.

MR LLOYD:   But they are linked.  That is the whole point.  The second new claim is that she was approached by two LTTE operatives in 1995 and as a consequence of that approach she was taken by the police and raped.  So it is in that context – this is like an hour afterwards.  There is some discussion of an hour ago.

HER HONOUR:   It is four pages later, is it not?

MR LLOYD:   And there was also a break.  There was an adjournment for a period.  I think it begins, the discussion of the new claim, at about page 15.

HER HONOUR:   And nothing is asked about ‑ ‑ ‑

MR LLOYD:   So at this point in time the Tribunal is just trying to make sense of this new claim.

HER HONOUR:   Which claim?

MR LLOYD:   The claim about the two LTTE operatives asking her to join the ‑ ‑ ‑

HER HONOUR:   Yes, and what happened at the police station is mentioned in this circumstance ‑ ‑ ‑

MR LLOYD:   And it is mentioned in the circumstance that ‑ ‑ ‑

HER HONOUR:   ‑ ‑ ‑ that the applicant says, “That incident took place”.  The Tribunal asks, “was this before or after the incident”, seemingly accepting it as fact ‑ ‑ ‑

MR LLOYD:   Asking for information.  At this stage the Tribunal is just trying to find out what the story is.

HER HONOUR:   No, but – yes – well, about the LTTE, but the question is this:  is it not the case that credit was ultimately the basis of the Tribunal’s decision?

MR LLOYD:   The basis of the Tribunal’s decision does not, in my submission, turn on credit.  It turns on a finding that she does not have a subjective fear because after she finished in the Maldives she went back there for three weeks.

HER HONOUR:   Including because she made up this account of what happened in 1995 including at the police station.

MR LLOYD:   In my submission, that was rejected but in the end that was just a separate claim that was rejected.  So the Tribunal has gone through, “You’ve made this new claim.  I reject these new claims.”  But also the reasoning in relation to the subjective fear finding is entirely separate to the rape claim.

HER HONOUR:   I think one might have a different – well, it is possible one might take a different view of fear in the case of somebody who has experienced an incident of this kind ‑ ‑ ‑

MR LLOYD:   I accept that but in a sense ‑ ‑ ‑

HER HONOUR:   ‑ ‑ ‑ and that is why I say you cannot say that this was purely peripheral.

MR LLOYD:   ‑ ‑ ‑ it even reinforces the Tribunal’s ultimate finding if the rape had occurred because the Tribunal found that at the end of her experience in the Maldives she need not – she already had an Australian visa – she could have gone to Australia without having to go back and spend three weeks in Sri Lanka.  She chose to spend three weeks in Sri Lanka and whether she suffered that incident in 1995 or not, in my submission ‑ ‑ ‑

HER HONOUR:   She went back with her husband, did she not, at that point?

MR LLOYD:   Well, she went back to get married.

HER HONOUR:   Yes.

MR LLOYD:   She went back to get married in this place that she says she is too scared to return to.  Now, in any event, the way it transpires is the Tribunal then learns of the second new claim and only through questioning of that claim does the link become apparent and it is when the link becomes apparent that the Tribunal expresses its concern.  And perhaps at the top of page 19 there are two paragraphs there.  The first one is:

I have to say also that I have to think very carefully about these matters ‑ ‑ ‑

HER HONOUR:   Yes, that is the one I am concerned with.

MR LLOYD:   Your Honour has raised the next paragraph.

HER HONOUR:   That seems to me to be a neutral statement.

MR LLOYD:   Yes:

these matters that have been raised today for the first time.  And they are really two separate matters in that regard . . . The first one is the question of your treatment by the police at the police station in 1995.

Now, that is referring to the rape.

The second issue which is much more difficult to understand because the issue was actually discussed with you in the previous tribunal hearing is the alleged approach to you to join the LTTE in 1995.

So the Tribunal in that paragraph is saying, “I have a problem with both of these matters.”

HER HONOUR:   I would not have thought so.  I must say I would have thought ‑ ‑ ‑

MR LLOYD:   Well, it says “these matters” and it explains what the two matters are.

HER HONOUR:   Yes, I know.  I would have thought, if I had been counsel, that there was not really a significant problem about the incident at the police station.  The other one is “more difficult to understand” and I myself would not have understood what the Tribunal was talking about in that passage.  That is the difficulty I have with it.  I would not have known, I have to say, how to respond to that when I have already been told that the Tribunal does not need to hear me on ‑ ‑ ‑

MR LLOYD:   But you have already been told that before the second new claim came up and the Tribunal has been incredulous about the second claim.

HER HONOUR:   But the second one is not entirely new, is it?  The second one is not entirely new:

because the issue was actually discussed with you in the previous tribunal ‑ ‑ ‑

MR LLOYD:   Now, let me make that clear.  What was discussed at the previous Tribunal was that she was afraid of being forced to join the LTTE.  There was no mention of the two friends of the teachers coming.  There is no mention of her having been asked to join the LTTE.  There was just a statement that she fears being forcibly recruited without any suggestion that anyone has approached anything.  So that is why it was in part mentioned at the first Tribunal hearing but what the next paragraph which concerns your Honour, I think, with what the Tribunal is saying, is that he needs to check exactly what was raised the first time around:

I have to consider whether it is reasonable to accept that each of these was raised on previous occasions including before the tribunal at the last hearing.

Now, in my submission, the Tribunal has said, “Well, you have first of all claimed rape.  Well, maybe I had no problem with that.  Then you have linked the rape into this second claim about forcible recruitment through being approached.  Now, this is a whole new thing.”  And, in my submission, at that point any counsel should have then been alarmed that the initial lack of concern in relation to the rape had been dispensed with and now the Tribunal is saying that he is going to have think very carefully.

Now, you would not have to think very carefully about something you had accepted.  I mean, if your Honour having told my friend something today and accepting, for example, in relation to the rape and the psychologist’s matter, that you did not hear him on that, if subsequently you said, “Well, I have to think very carefully about that”, he is then on notice that it is not in the bag and anything he wants to say he should say.  So, in my submission, it is raised there.  It is also raised at the bottom of page 20.

HER HONOUR:   This is an inquisitorial process essentially, is it not?

MR LLOYD:   Well, this Court has not accepted that.

HER HONOUR:   Well, no ‑ ‑ ‑

MR LLOYD:   It has not accepted that what goes with it is any duties to ‑ ‑ ‑

HER HONOUR:   No, but it does put a different complexion on the nature of the requirements of natural justice.  I mean, it is in part inquisitorial, is it not?

MR LLOYD:   I accept that, your Honour, but ‑ ‑ ‑

HER HONOUR:   I mean, for example, was the applicant led through her evidence by her representative?

MR LLOYD:   No.

HER HONOUR:   No.

MR LLOYD:   But the representative is given opportunity at the end to say anything or ask any questions.

HER HONOUR:   Yes.

MR LLOYD:   Anyway, at the bottom of page 20 the Tribunal also says:

Did you when you had the problem with the local police in 95, you didn’t seek to make a complaint or carry that forward by through lawyers, through courts, through more senior authorities.

HER HONOUR:   Yes, but, again, the Tribunal does not say, “Do you say that when you had that problem – that when you said you had” – it seems to accept it.  It did not say, “When you claimed to have had that problem”, you see.

MR LLOYD:   It is not the kind of question that you would ask if you just accepted that it had happened.  You are asking that question ‑ ‑ ‑

HER HONOUR:   I do not know.

MR LLOYD:   ‑ ‑ ‑ to test the veracity of the claim.

HER HONOUR:   Well, you could be asking it because you are concerned with – I mean, in one sense it looks like a favourable question indicating that the law enforcement agencies were not offering protection.

MR LLOYD:   I suppose, in my submission, the burden on the Tribunal should not be placed so high where a new claim is put up; the Tribunal appears to accept that; it is then linked into a new ‑ ‑ ‑

HER HONOUR:   It is not a question of the burden being placed so high.  It is a question whether there is an arguable case that there was a breach of the rules of procedural fairness.

MR LLOYD:   If it please the Court.  Then in relation to the psychologist’s report, I accept there is no discussion of the psychologist’s report.  What has happened is the Tribunal has come, as, in my submission, it said it would do, to think very carefully about the issues as to whether or not it believes that the rape took place.  It has regard to the fact that the applicant had tendered a psychologist’s report about what she suffered.  That report does not refer to the rape and the report makes it clear that she, at least on some occasions, attended the psychologist without her mother or husband and the Tribunal draws an inference which is open to it to draw from material put forward by the applicant herself that she had not told that to the psychologist.

Now, in my submission, that is not an irrational inference.  It is a reasonable inference on material provided that the rules of natural justice do not suggest that where ‑ ‑ ‑

HER HONOUR:   It is not a question of whether it is a rational inference.  It is a question whether it is arguably procedurally unfair.

MR LLOYD:   Certainly.  In my submission, what the judgment of this and other courts have indicated is that what you have to know is the case against you and that involves you being given an opportunity.  If what you say or the evidence you put forward leads you into a deeper mire, that does not lead and there is no authority that my friend relies upon to suggest that there is a duty on the Tribunal to go back and suggest to the applicant, “Well, you have said this, but I don’t believe it because of X.”

In fact, the authorities of this Court – and I refer to Abebe – are specifically to the contrary, a decision which your Honour joined in.  That was also a rape case.  There was an allegation of rape.  The proposition was put to this Court on the prerogative writ application that the Tribunal should have told the applicant if it was not going to believe her claim about the rape.  Apparently that had not been done.

HER HONOUR:   This goes further.  This says, “I don’t need to question you about that” and then has questions framed in a way that seems to accept the truth of them – well, accept the fact that it happened and then only at the end a rather oblique statement.

MR LLOYD:   Well, I think I have drawn your Honour’s attention to the relevant evidence.  Obviously your Honour feels that there is an arguable case.  I do not think I am going to persuade you that it is not arguable, so I am not sure that I can assist your Honour any further.

HER HONOUR:   Well, you can actually, I am sorry.  At the time when there were proceedings before Justice Wilcox, was that the time at which procedural fairness could not be raised in the Federal Court?

MR LLOYD:   I am glad your Honour reminds me of that because I did want to say something about the delay as well.  But to answer your Honour’s question, that is so, that at that time – that is why we – your Honour might recall we took an estoppel or a res judicata point in relation to the other matters.  They have now been dropped.  We did not take it in relation to natural justice because it could not be raised in that court.

HER HONOUR:   Yes.  The delay you are talking about is six months, is it?

MR LLOYD:   About eight months, your Honour.

HER HONOUR:   During which time it is accepted, is it, that there was an application to the Minister?

MR LLOYD:   I do not have instructions on that, but I am not in a position to dispute it.

HER HONOUR:   You do not have any.  Well, the evidence is that there was.

MR LLOYD:   The evidence is that there was.

HER HONOUR:   Yes.  You did not – yes.  Well, you are bound by that evidence anyway.

MR LLOYD:   Certainly in the order nisi proceeding.  We will make further inquiries, I suppose, if we take issue with it.

HER HONOUR:   Yes.

MR LLOYD:   But the evidence is also that she was legally represented in both proceedings.

HER HONOUR:   But on limited issues.

MR LLOYD:   But she was legally represented and before Justice Wilcox, Mr Zipser, who has been before your Honour this morning, redrafted the application.  If Mr Zipser was of a view that a matter could have been taken to this Court then, he could have done so then.  It is difficult to believe, in my submission, that he would not have raised the matter with the applicant at the time.  Mr Zipser is not exactly shy of coming to this Court.

HER HONOUR:   She said she had no money at that stage and she applied to the Minister.  Anyway, it does not matter.

MR LLOYD:   May it please your Honour.

HER HONOUR:   That is a matter that you are not precluded from raising further down the track.

MR LLOYD:   Certainly not.

HER HONOUR:   Now, Mr Patel, I would be minded to grant an order nisi limited to a denial of natural justice – I have not actually quite found your amended order nisi – particularised by reference to the transcript with reference to the incident at the police station and the psychologist’s report. 

Now, I know there are lots of documents here but I can never find them when I need them.  Is there some document by which that can be worked out or should I ask you to file an amended order nisi?

MR PATEL:   Perhaps it would be better if we file an amended order nisi.

HER HONOUR:   But it is limited to those issues and those ‑ ‑ ‑

MR PATEL:   Yes, your Honour.

HER HONOUR:   It is limited to the question of natural justice, particularised by reference to the incident at the police station and the psychologist’s report.

MR PATEL:   Your Honour, would it be appropriate for me just to delete the other part and just leave ‑ ‑ ‑

HER HONOUR:   Well, I cannot find the document, I am sorry.  I have the original.  The original order nisi, if you take out – but the particulars ‑ ‑ ‑

MR LLOYD:   This is my version, your Honour, but it is ‑ ‑ ‑

HER HONOUR:   The original one has long since gone, has it not?

MR PATEL:   Your Honour, that should be on the file because this morning actually I got a copy of this ‑ ‑ ‑

HER HONOUR:   I have seen it.  I saw it myself this morning ‑ ‑ ‑

MR PATEL:   I got a photocopy I think.

HER HONOUR:   ‑ ‑ ‑ and it has not made its way back, has it?  Yes.

MR PATEL:   If you can give me one minute, your Honour, I will just ‑ ‑ ‑

HER HONOUR:   Yes.  No, it needs to be expanded.  It needs to be more particular than that relating to the ‑ ‑ ‑

MR LLOYD:   I assume, your Honour, that the emphasis is on the alleged misleading by the Tribunal by saying that it does not need to ask the question, whether or not that has been misled.

HER HONOUR:   Yes.  Well, that is the emphasis but I do not want to do the drafting for Mr Patel.  But I think, Mr Patel, you will have to file amended particulars before the order nisi will issue.

MR LLOYD:   Perhaps if Mr Patel contacts my instructing solicitor and maybe can agree to the terms of it ‑ ‑ ‑

HER HONOUR:   Yes, thank you.  Now, there is one other matter which I should raise and that is this:  if the respondent should inform the prosecutrix whether it is intended to raise the question of delay as a bar to final relief, if so, the prosecutrix should file affidavits in that regard within the next 28 days and the prosecutrix should have an opportunity to respond to them within 14 days and if there are any problems about that the matter can be relisted for directions as to what goes in the application book and the like.  But I think at this stage I will just indicate that an order nisi will issue in the terms which I have indicated and an amended document in that regard should be submitted to the Registry within 48 hours and I will certify for the attendance of counsel.  I think there is nothing else, is there?

MR PATEL:   As your Honour pleases.

MR LLOYD:   May it please your Honour.

HER HONOUR:   Thank you.  The Court will now adjourn.

AT 11.42 AM THE MATTER WAS CONCLUDED