Applicant S154-2002, Ex parte - Re RRT & Anor
[2002] HCATrans 327
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, 30 AUGUST 2002, AT 9.40 AM
(Continued from 8/7/02)
Copyright in the High Court of Australia
MR J.M. PATEL: May it please your Honour, I appear for the applicant. (instructed by the applicant)
MR S.B. LLOYD: I appear for the Minister. (instructed by the Australian Government Solicitor)
HER HONOUR: Mr Patel.
MR PATEL: The Applicant S154 is here, your Honour.
HER HONOUR: Yes, but what about – there is no further evidence being filed?
MR PATEL: Unfortunately, your Honour, I had the same problems which I encountered earlier. Since the filing of the affidavit, Applicant S154 had to go to Queensland and we lost contact because of her financial difficulty and her mother was ill or something and it was only this morning I saw her again today but I had a conversation with her over the telephone when I said it was important that she attend the Court and I should have proper instructions, particularly because there is no instructing solicitor, and the material I have been given just gives me a very sketchy picture of the matters that could be put on her behalf. There are one or two matters which have ‑ ‑ ‑
HER HONOUR: But did I not make an order that any further affidavit material be filed?
MR PATEL: Yes, an affidavit has been filed, your Honour.
HER HONOUR: What is the date of that, 15 August?
MR PATEL: Yes.
HER HONOUR: Yes, thank you. I had understood that you were going to deal with some transcript matters.
MR PATEL: Your Honour, I just, as I said, did not have all the relevant information, particularly the information which has come to light subsequently. There is only this morning, plus on the 15th when I spoke to Applicant S154. I was unaware of the implications of the High Court’s decision in Muin and Lie which had come to my notice subsequently after I had prepared the affidavit and it was only matters which could have conveniently been taken up in the affidavit were not dealt with, particularly ‑ ‑ ‑
HER HONOUR: Now, Mr Patel, I am losing some patience in this matter, I should say. Let me go to the transcript of the matter before me on 8 July. I think that was the second adjournment I granted you, was it not?
MR PATEL: Yes, your Honour.
HER HONOUR: On that occasion you said you were attempting to get a transcript of the proceedings before the Tribunal.
MR PATEL: Which we have done, your Honour, and which is made part of the evidence.
HER HONOUR: At the very least I said the evidence would have to be filed by 16 August. Now, the affidavit you had filed is really not evidence, it is simply another way of stating the grounds upon which the application is based. Now, what has happened about that transcript?
MR PATEL: That transcript forms part of the evidence, your Honour. It has been annexed in the affidavit.
HER HONOUR: Annexed to the affidavit of 15 August?
MR PATEL: Yes. Paragraph 6, your Honour. I am sorry, that was filed. I apologise, your Honour.
HER HONOUR: I am sorry?
MR PATEL: The affidavits – the transcripts were filed separately because they were bulky but paragraph 6 of the affidavit ‑ ‑ ‑
HER HONOUR: Those papers are not in the Court. You say:
I seek leave to refer to and rely on the transcript . . . copies of which have been filed and served on the Respondents.
What about providing the Court with them?
MR PATEL: They have been filed with the Court, your Honour. They should be on the Court file.
HER HONOUR: I see. Yes, thank you. Yes, they are there. What is the position today?
MR PATEL: The position today, your Honour, is that we are relying on the – we have filed written submissions. Basically, the applicant is seeking to rely on the matters that were canvassed in the Muin and Lie decision and Applicant 62 ‑ ‑ ‑
HER HONOUR: What matters? Where is the material? Where is the evidence to rely on those matters?
MR PATEL: The evidence is in the form of the transcript, your Honour. The transcript ‑ ‑ ‑
HER HONOUR: Yes. You will have to take me to it.
MR PATEL: Yes. Your Honour, I will take you to the – your Honour, it would be convenient to refer you to the transcript No 136/97 file which forms part of the evidence. Your Honour, what we purporting is that nowhere in the transcript - it is difficult to find any – not difficult, but I have gone through the transcript – all of the transcript. During the entire proceedings at no stage was the applicant referred to any country information, specifically, or to any of the materials which the Tribunal has cited in its decision. Specific references have been made in the Tribunal’s decision as to the matters – various matters that were relied on – but the interrogation and the inquiry that took place before the Tribunal, the Tribunal did not give any opportunity to the applicant by referring to any specific material saying that “This is the material I am relying on to draw the inferences that it is safe for you to return to Sri Lanka, that you are not a likely candidate”, or, “You do not fit the profile of persons who would be forcibly recruited by LTTE.”
There were some general – there was, at best, a general imputation that, “Look, my information suggests that this is the position – what we have to say” – but it was not specifically brought to her attention that “This is the material I am referring to” nor was any extract given to her or anything read out to her, and this information ranges on a number of issues - the information cited in the Tribunal’s decision – as to the protection the Sri Lankan Government is capable ‑ ‑ ‑
HER HONOUR: I am sorry, I did not hear that. Production?
MR PATEL: The protection ‑ ‑ ‑
HER HONOUR: Protection.
MR PATEL: ‑ ‑ ‑ the Sri Lankan Government is providing to the Tamils as well as other communities affected by the strife, particularly with reference to procedure for lodging complaints that if any activity amounting to torture or such thing – if misconduct occurs, there is machinery in place for – which could be used by somebody in the predicament of the applicant. The applicant could have availed the procedure and could have pursued if she had been mistreated and if relied on – yes, that transcript which forms part of the earlier affidavit sworn on 22 April.
HER HONOUR: Now, let me find that. Yes?
MR PATEL: After setting out the basic ‑ ‑ ‑
HER HONOUR: Where do I find – what exactly are you referring to?
MR PATEL: Annexure A.
HER HONOUR: Annexure A:
DECISION AND REASONS FOR DECISION –
I have.
MR PATEL: Yes, your Honour. Yes, that is the one. If I may take you to some of the matters which I have just generally referred to.
HER HONOUR: Yes.
MR PATEL: It might be convenient to refer you to some specific material in the decision. It would be convenient to start with all the material that has been cited. At page 15 the Tribunal refers to:
cable CL830 of 11 March 1998)
-
Just the last line, from where it says:
(see for example –
And, apparently, the Tribunal has utilised that material to draw certain inferences.
HER HONOUR: Now, Mr Patel, there is some difficult about this. Do you deny that that is what happen?
MR PATEL: No, I am not denying, your Honour. What I am suggesting ‑ ‑ ‑
HER HONOUR: Is there some material that you would have put in reply?
MR PATEL: That opportunity was never given.
HER HONOUR: No, that is not the question.
MR PATEL: Yes.
HER HONOUR: When you go to the Muin and Lie matters you will see that it was important part of the reasoning of those who formed the majority that there was uncontested evidence from the applicants in those places that they would have led contrary information.
MR PATEL: That is true, your Honour. That could not be argued that what would have been the position because simply, even at this stage, unfortunately, things as they stand, my client has no idea what is contained in that material, unlike the way ‑ ‑ ‑
HER HONOUR: Yes, well, you wish to refer me to other matters in the decision?
MR PATEL: Yes, it would be – there is at page 18:
DFAT in Country Information Reports No 67/99 and 193/99 –
The reference is extracted, it appears, from:
CISNET CX35499 and CX36118.
At page 19 there is a reference to an example given from:
N97/19392 of 7 May 1999).
On the same page certain information from:
The Weekend Australian, 25-26 November 1995 –
and from:
The Age, 5 June 1995 –
Then, on the same page:
DFAT cable O.CL463 –
It is extracted material from there and which the Tribunal has cited in support of its decision. On the same page:
(Country Information Report 67/99, CISNET CX34175) –
On page 21:
[DFAT update of 4 June 1999 –
On the same page 21 on the last paragraph which begins with:
This is consistent with information from other sources, including Lawyers for Human Rights and Development advice to DIRB, Canada, 15 December 1995 and the Danish Immigration Service “Report ‑ ‑ ‑
HER HONOUR: I have some difficulty with this, Mr Patel, because this information seems to be, that the Tribunal is referring to, directed to the question whether there was persecution of Tamils, as such, or only of LTTE supporters. Is that not right?
MR PATEL: Yes, part of this information, but there is other information which relates to the treatment people ‑ ‑ ‑
HER HONOUR: It is just that I do not see what the focus of your argument is. If you have some point to make other than that there was general country information to which the applicant was not specifically referred, I do not understand the point.
MR PATEL: The focus, to put it in a nutshell is, your Honour, is that procedural fairness required, or requires, that the Tribunal at least put the material, if not the whole of the material the substantial material from which it purports to draw its conclusions that this is the situation in Sri Lanka.
HER HONOUR: What, that the situation in Sri Lanka is what? I think you have to be more specific than that.
MR PATEL: Yes, there is no – that Tamils are not persecuted.
HER HONOUR: That, sorry?
MR PATEL: That the type of persecution which the applicant said she had suffered as a Tamil or as being identified as a ‑ ‑ ‑
HER HONOUR: I am not following you. I am sorry. You will have to be a little clearer. If you can ‑ ‑ ‑
MR PATEL: I will try to put it this way, your Honour, that the applicant applied for refugee status on the ground that she had suffered persecution. She outlined her case in the statements and in the evidence that ‑ ‑ ‑
HER HONOUR: Well, on the ground that she feared persecution, that was ‑ ‑ ‑
MR PATEL: Yes. She feared persecution on ‑ has been identified as a group ‑ ‑ ‑
HER HONOUR: On what? On the ground that she was a Tamil?
MR PATEL: A Tamil, yes.
HER HONOUR: All right. As such? Nothing more?
MR PATEL: A Tamil, as such; that she suffered persecution because of the perceived imputation that she had as a possible LTTE suspect or sympathiser or a potential sympathiser and by reason of her association with people who were or who were suspected of her LTTE connections; that her brother was recruited and was killed and her father had suffered and she had herself witnessed all these incidents which had led her to believe that if she were to return she would face similar persecution.
HER HONOUR: And you say she was, in that case, denied procedural fairness?
MR PATEL: She was denied procedural fairness on the basis that while the Tribunal was entitled to rely on the information which it had rather than what the applicant was saying. What we are putting, your Honour, is that she deserved the opportunity from the Tribunal to say that, “Look, what you said does not fit in with the information – the specific information I have. Here is that information. What do you say – which contradicts what you are saying”. So, the contradiction from the ‑ ‑ ‑
HER HONOUR: No. This is where, you see, you lose me. This information goes to the question, does it not, of whether there was persecution against Tamils for being Tamils?
MR PATEL: Yes. Also ‑ ‑ ‑
HER HONOUR: And the Tribunal said, “Well, our information is that there is not”.
MR PATEL: Yes.
HER HONOUR: Now, in a general way, it put that issue to her in the hearing, did it not?
MR PATEL: Yes, it did.
HER HONOUR: In a general way.
MR PATEL: In a general way, yes.
HER HONOUR: It put that issue to her.
MR PATEL: Yes.
HER HONOUR: And she answered it.
MR PATEL: Yes.
HER HONOUR: Yes. Well, now, where is the denial of procedural fairness?
MR PATEL: She did not admit, your Honour, that that is true. You see, there was a contradiction in that the Tribunal took the view ‑ ‑ ‑
HER HONOUR: Can you take me to the specific part of the transcript where that happened?
MR PATEL: At page 18, for instance, your Honour, there was some – in relation to the question put:
Well, I understand that the LTTE does recruit young Tamils ‑ ‑ ‑
HER HONOUR: Where is that, I am sorry? At page ‑ ‑ ‑?
MR PATEL: I am sorry, at page 18, the first paragraph, “M”.
HER HONOUR: The first paragraph?
MR PATEL: Yes.
HER HONOUR: I am having great difficulty hearing you.
MR PATEL: I am sorry, your Honour.
HER HONOUR: Is there some adjustment that can be made to the system, or something?
MR PATEL: I am sorry, it is my fault, your Honour. At page 18, the first paragraph.
HER HONOUR: Yes.
MR PATEL: Where it starts with:
Well, I understand that the LTTE does recruit young Tamils in the north. And it may occasionally approach known sympathisers with ‑ ‑ ‑
HER HONOUR: This is at page 18?
MR PATEL: Page 18 of the transcript.
HER HONOUR: Of the transcript before the Tribunal?
MR PATEL: Yes. Your Honour, there are two transcripts ‑ I think it might have created some confusion.
HER HONOUR: Yes, very well.
MR PATEL: Yes, because the first transcript was for the earlier hearing.
HER HONOUR: Well, which one am I to be reading?
MR PATEL: That is N ‑ ‑ ‑
HER HONOUR: Yes. I have found that, now, in the first transcript.
MR PATEL: Yes.
HER HONOUR: This is the transcript of – well, could I be told when this transcript occurred and what is the second transcript about?
MR PATEL: The second transcript about is the earlier hearing that took place before a different tribunal, because there were two hearings.
HER HONOUR: Yes, very well.
MR PATEL: First it was referred from the Federal Court and there was a hearing.
HER HONOUR: Yes, all right. Now I understand. Yes.
MR PATEL: Yes, at page 18 she was asked about LTTE recruiting young Tamils and said:
Well, I understand that the LTTE does recruit young Tamils in the north. And it may occasionally approach known sympathisers with same particular task. But it is really hard to see that at your age and circumstances they would try to recruit you. It’s not consistent with the other materials that we have.
Now, that material, once again, if I may say so, was not put to the applicant, and it goes on to say:
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 LTTE forces. However I will carefully consider what you had to say about this issue. Before we continue with the LTTE or situation in Colombo, I just want to refer back briefly to that earlier period when your family was threatened by the JVP. 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 comments on that material?
And she said:
Sir, these Sinhalese mobs and thugs still cause problems to Tamil people. AT that time they were doing these things under the name of JVP.
Then, in the next question, the second paragraph, they say:
I should say that most recent material for example the British Home Office Sri Lanka Assessment of October 2000 is consistent with that. Of course that doesn’t mean that there aren’t situations for individual Tamils in particular situations or for people who are seriously suspected of LTTE of actual LTTE involvement.
And her answer was that:
All these atrocities are committed by the security forces. From our side we depend on them. If they don’t provide us with protection just to consider what happened to me then how come that they would give protection?
So there was not any specific admission by her that what the Tribunal was putting or the inferences drawn were acceptable to her. It was put in very general broad terms at the end on page 13, last paragraph after the break of “Hearing Resumes”, where she was taken back again to the material, and said:
Some of these are matter which were raised in the delegate’s decision or in the original decision by the tribunal and I want to give you an opportunity to comment on them before I come to any view myself about these matters. Now, there are a range of kinds of problems that you might face from the kind of security check problems right across someone who is specifically suspected of involvement with the LTTE.
And one question that was raised previously is it is difficult to see that you were or are suspect of involvement with the LTTE since although you have been stopped and questioned at security checks on many occasions you were not actually arrested or charged and if you were really suspected of such involvement you would not have been simply released after questioning.
Indeed it is hard to see that if you were specifically suspected of LTTE involvement that you would have been able to repeatedly travel in and out of Sir Lanka openly in a passport on your own name.
The reports cited in the earlier decisions also refer to material that those who are particularly suspected by the security forces and received 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?Yes
Please
Then there follows exchange which unfortunately does not make a great deal of sense but she, it would appear, is attempting to answer her particular circumstances, how she faced the alleged incident, the type of persecution she had suffered. It may have been put crudely but she was attempting to put to the Tribunal that, “Your information and my personal experiences are two different matters because they do not match with what you say.” This information, although in general broad term it was put that, “Look, this was cited in earlier decisions”, so the difficulty faced by the applicant was this, that the Tribunal had looked at a very wide range of material including the transcript or what evidence had gone before, the material that had been relied on by the earlier Tribunal, various material that had been cited by the earlier Tribunal in its decision.
What the Tribunal in fact did was generally refer to, “Look, we had a lot of material”, and the difficulty in which the applicant was put was that she was not referred to any specific materials, even from the earlier decision saying, “Look, this is what was cited in earlier decision and what do you have to say in respect of this particular material?”, whether it was ‑ ‑ ‑
HER HONOUR: I simply do not understand why she should be referred to the specific material in the earlier decision. She had that decision. What you have to establish really is, under the rubric of “denial of natural justice”, that she was prevented from putting a case. If she has the material in the earlier decision how is she prevented from putting her case?
MR PATEL: The difficulty she had was that there was a previous hearing. This was supposed to be a completely new hearing without any - while it would be open to draw from any source any material which would assist the Tribunal in reaching a just decision, the Tribunal had a vast area of material and in order to make out the applicant could - what was pointed out in Muin’s Case was this, that when one is referred to general material, you do not know what your target is. Now, for instance he could prepare on one particular matter whereas the Tribunal could be looking at altogether different material and we could have submissions that could go on maybe 100 pages with reference to the material which the Tribunal may not consider relevant or important for his or her decision.
So the problem the applicant would have that she does not know exactly what is it that is going to influence the Tribunal in its decision. There is a vast area of material, and she has to pick - now it is concealed, although it respectfully appears that this material needs to rebutted or that is something that the Tribunal would look at it. But it is not only the old material that was hashed in the previous decision by the delegate or by the first Tribunal but also the new material that is coming up all the time. The Tribunal has not confined itself to looking at only particular material. So with that specificity the applicant is put in this position, that all she can do is speculate that, yes, this material - and considerable material was cited in an earlier decision - saying, yes this is the material which the second Tribunal also looked at.
Now, the list the Tribunal could have done was refer to specific material, even if it was relying on from earlier decisions saying, “Look, we would like you to respond to this particular material” or she could have been asked specific questions in relation to that material, why certain inferences should not be drawn. When one looks at the transcript, not only of this hearing but also of the previous hearing, which the Tribunal had considered in its decision, one finds that not only in this hearing but even in earlier hearing the applicant was never referred to any specific material. A vast array of material was available to the earlier Tribunal and it selected what it thought supported its decision.
The second Tribunal followed the same route, and again the applicant was not given any specific opportunity to respond to specific material. What the argument boils down to is that the inquiry to be just has to be confined to certain ‑ the applicant is entitled to know that, “This is the area within which it will be confined and we want you to respond to this particular material” in which case she would have a better opportunity to prepare her case and say that this is, although it is not adversarial, she still deserved to know ‑ in order to respond properly, she should have that opportunity to consider and say, “Yes, this is why this material should not be accepted or rejected.” This difficulty can be better understood by the material I earlier cited from the newspaper reports, which the Tribunal has taken into account and which has apparently influenced its decision.
Now, that amounts to speculation, that what would happen is that she has to scan through all the newspaper and see what is going to influence the Tribunal and use the same type of research facility which is available to the Tribunal to make a proper reply. That is why you should not rely on that information or this information. So she does not have the same resources which the Tribunal has. Procedural fairness requires that she should be given opportunity to respond to particular material which is going to influence the Tribunal in reaching its decision. So she could at least endeavour to pursue the Tribunal one way or the other what weight, if any, it should give to that material or that particular piece of evidence.
Throughout both the transcript this opportunity was never given. So she was again at the same disadvantage. So what the Tribunal expected was to assume that, “Yes, she would read everything that is contained in that decision and that is also going to influence”, and the Tribunal have not accepted all of it that was in the previous decision. It has gone on and made its own research and come up with other material to reinforce or to reach its conclusion.
So it has relied on some information and not all information, and the purpose of the second hearing, one would think, was not merely to ‑ it was not a paper re‑hearing where the Tribunal was just going to look at it and say, “Is there anything else you want to add?” In our submission, your Honour, the transcript of both hearing and particularly the one that relates to this matter, indicate the way the inquiry proceeded was ‑ it appears that the Tribunal seems to have assumed that all this information, what it considered is automatically also considered by the applicant, if there is anything in any material that needs to respond she would respond on her own initiative rather than using its role to make the inquiry in a way which would elicit information to reach a just decision on its merits.
While I am making this point, it would be convenient to refer to the incident relating to rape at the police station, as stated in her affidavit. This was an incident which had a great bearing on the case in a number of respects. It was a serious allegation. It was a conduct, if proved or if accepted, would in itself support the applicant’s case to a considerable degree that she had actually suffered the type of persecution which would qualify her for the status she was claiming. The issue was not raised in the earlier hearing. It had not ‑ ‑ ‑
HER HONOUR: Now, why are we concerned with the earlier hearing?
MR PATEL: Because the Tribunal took the view that this matters because it had not been raised in the earlier hearing, it had come up for the very first time ‑ he took the view that that affects her credibility, and not only he say that he would not accept ‑ ‑ ‑
HER HONOUR: You will have to take me to ‑ ‑ ‑
MR PATEL: Yes, I will take you to the transcript ‑ ‑ ‑
HER HONOUR: If you are relying on this ‑ this is not as I understand it, but ‑ ‑ ‑
MR PATEL: Page 10 at the middle:
Please continue
I have described in the statement the saying that one night some boys came and knocked at the door. Later mother came no no that elderly lady.
That elderly lady came and she ‑ ‑ ‑
HER HONOUR: Now, where are you reading from?
MR PATEL: Page 10, line 7. It starts with, “I have described in the statement”.
HER HONOUR: Let me just see. This is annexure ‑ ‑ ‑
MR PATEL: The transcript and ‑ ‑ ‑
HER HONOUR: You are reading the transcript or the decision?
MR PATEL: No, from the transcript, sorry, your Honour. I will first cite the relevant passage from the transcript and come to the decision.
HER HONOUR: Yes. Page 10.
MR PATEL: At line 7 where it starts, “I have described” ‑ ‑ ‑
HER HONOUR: Yes.
MR PATEL: The only response from the Tribunal member was:
Ok. I don’t need to ask you any further question about that particular incident. Now, after that you went to the Maldives and you became established there with employment and after a period with a relationship with a person who later became your husband?
This particular incident was not made the subject of any further inquiry or any questions were put to her, and it was just left ‑ he did not say one way or the other that, “Look, I have difficulty accepting this claim”, particularly the claim that she was raped and why this matter was not ‑ or any other information he needed in order to make up his mind whether or not he should accept that claim or what implications it had or what inferences he should draw. Nothing was put to her specifically. The extent of that particular incident apart from saying, “Ok. I don’t need to ask you any further question”, in our submission, conveyed to her that he was not either interested in it or he was accepting it.
Then at page 14, the inquiry in relation to that particular incident that an attempt was being made to recruit her by those two people who had visited her was taken up, the incident she reported, and she was asked questions to enlarge on that particular incident, particularly those in respect of her claim that an attempt was being made to recruit her which led to her being reported by the Sinhalese and which ultimately led to the incident that happened at the police station. But the inquiry focused on whether or not these two friends had made ‑ or an attempt had been made to recruit her, or her claim relating to her fear that she might be recruited by LTTE, and the inquiry just focused on that. There was no focus on her claim in relation to rape or the incident that happened at the police station.
Then when we come to page 16 there is some reference again in relation to that incident where the interrogation followed more or less the same line about her claimed fear that she might be recruited by LTTE. Particularly page 16 at the bottom, “TAPE TWO” where she says:
How could I have spoken because they were beating me they asked me whether I had any connections with the LTTE?
This was in relation to the question whether - she was specifically asked about these two persons coming to the house. Then it goes - her answer was that - she was again:
Did they specifically ask you whether these two people had come to your house? Did they specifically refer to them?
Yes.
Why didn’t you mention previously when you were talking about what police said to you when they took to the police station?
Because I don’t remember very well and this is not a pleasant thing to speak about?
Page 14 of the decision, that is the affidavit of 22 April, and that is the Tribunal’s decision.
HER HONOUR: Yes.
MR PATEL: At page 14, the last paragraph:
The way in which this claim was presented and developed at hearing led the Tribunal to conclude that this did not represent the Applicant’s own actual experience. Further, the Tribunal found it most implausible that two persons who the Applicant had met through teachers when she was a young girl should suddenly come to her house eight years later –
go to the next page, 15 –
seeking to recruit her to the LTTE. The Tribunal was satisfied that this claim was not true but was presented solely for the purpose of bolstering the Applicant’s claims. The Applicant’s insistence that this circumstance was the reason she was taken and questioned (on the occasion when she said she was raped) leads the Tribunal to conclude that the detention (if it occurred at all) did not occur in the manner and for the reason claimed.
And then it goes on:
Having carefully considered the Applicant’s evidence about these particular matters, the Tribunal does not accept that the Applicant was approached by LTTE members in 1995, or that she was asked or pressed to join the LTTE, or that she was for that reason detained by the police or that she was raped when detained by the police. These findings must affect the Tribunal’s view of the Applicant’s credibility on other matters.
So it is obvious that this was very crucial ‑ ‑ ‑
HER HONOUR: Except there is a different reading of that, is there not?
MR PATEL: There is, your Honour, but ‑ ‑ ‑
HER HONOUR: And the whole issue of the questioning and that section of the Tribunal’s reasoning is concerned with whether she was being pressed on that occasion to join the LTTE?
MR PATEL: That is true.
HER HONOUR: That is what it is about?
MR PATEL: That is correct. Yes, that is what I am trying to emphasise, that it was all about whether or not she had been recruited or an attempt was really made. This is what led the Tribunal to reject thereafter most of her other evidence, because it had a serious impact on her credibility because the Tribunal took the view that if she could not be believed on this occasion or, in particular, of this incident, if it was fabricated, then he would have difficulty in accepting a lot of other things, and it was a crucial ‑ ‑ ‑
HER HONOUR: Yes, well, one understands that, but what is the focus of your argument in this regard?
MR PATEL: The focus is that in that incident, there is still no mention about the incident of rape, although he has just made in passing that he does not believe that, but that ‑ ‑ ‑
HER HONOUR: Well, I do not think that is right. That is not how I read it. He does not believe that the rape occurred or the detention occurred for the reason assigned, namely, there had been an attempt to recruit her or she had been recruited to the LTTE. Whatever the reason for it, the Tribunal is saying, it was not the presence of these two people who, in the Tribunal’s view, did not attempt to recruit her to the LTTE.
MR PATEL: That is true, but assuming that that finding having been made – it had implication – but what we are putting is that procedural fairness required that the other incident ‑ ‑ ‑
HER HONOUR: Which other incident?
MR PATEL: That incident at the police station, rape, that was may be not – even if it was not accepted that that was the reason she had been taken to the police or detained for that particular reason, if it was for some other reason the Tribunal did not put any questions to her in relation to that incident before rejecting it wholly on the basis of credibility saying that ‑ ‑ ‑
HER HONOUR: But they did not reject it. That is what I am putting to you. You have misread it.
MR PATEL: He did not accept that she was raped.
HER HONOUR: He did not find that she was not raped.
MR PATEL: Perhaps in the later part, that comes out – if that is how you read it, your Honour, I have no problems, because I took the view that ‑ ‑ ‑
HER HONOUR: Are we concentrating on – there is certainly an ambiguity. This is the paragraph, is it, the crucial paragraph?
MR PATEL: Yes.
HER HONOUR: Yes:
Having carefully considered the Applicant’s evidence about these particular matters, the Tribunal does not accept that the Applicant was approached by LTTE members in 1995, or that she was asked or pressed to join the LTTE, or that she was for that reason detained by the police or that she was raped when detained by the police.
I would have said for that reason “raped”. I would have read it as saying, “does not accept that the reason for her being raped was the approach to her by LTTE members.”
MR PATEL: On that reading I have no problems because I took the view that if the Tribunal found – because it was an important matter on which the Tribunal had to make a finding whether or not, even if not for that reason, whether she had been mistreated at the police station, then that would justify her fear and it was an important matter apart from whether or not that was the reason whether she had been taken because of LTTE or was just used as an excuse. But in his later findings he relies on – at page 14, your Honour.
HER HONOUR: Yes.
MR PATEL: At page 14, the second paragraph:
Although in her original statement ‑ ‑ ‑
HER HONOUR: What was the denial of natural justice that is said to have occurred? I just do not follow this part of your argument.
MR PATEL: If I may take you to the affidavit. That part was that if it was accepted that rape had occurred and the Tribunal had to make a finding whether or not she had been rape, whether he - what she related maybe if it was not the whole truth that maybe she was not taken to the police station ‑ ‑ ‑
HER HONOUR: Well, just tell me, Mr Patel – I have tried several times to get to what your argument in this respect is – what is it that the Tribunal should have done or should not have done and why? Just tell me that.
MR PATEL: If I take you to page 14 that will perhaps clarify it, because that is ‑ ‑ ‑
HER HONOUR: Well, we have already been through it. I am asking you would you please tell me what, in your submission, the Tribunal should have done or should not have done and to give me the reasons why it should or should not have done what you complain of?
MR PATEL: The Tribunal should have held an inquiry in order to obtain ‑ ‑ ‑
HER HONOUR: Should have inquired and what?
MR PATEL: Obtained further information.
HER HONOUR: From whom?
MR PATEL: From the Applicant in relation to the claim that she had been raped. Although the Tribunal did not accept her claim on the basis that the story she gave in relation to the false recruitment or how an attempt was being made to recruit her, which led to the arrest, the Tribunal did not accept that that was the reason she had been taken, but it was necessary for the Tribunal to still make a finding whether or not she had been raped or she had suffered ‑ ‑ ‑
HER HONOUR: Why?
MR PATEL: Because that would amount to persecution, your Honour, in itself because she had been treated, whether on suspicion or for any other bogus ground, if she had been taken up, her claim was that that was related to her LTTE recruitment, but if the Tribunal had any doubts, the inquiry should have at least established that if that part of her story was not true, at least there was some truth in other matters she related, and the finding on that particular was significant ‑ ‑ ‑
HER HONOUR: Is this a natural justice point, procedural fairness point or is this some other point ‑ ‑ ‑
MR PATEL: No, it is essential to natural justice point because that Tribunal did make sort of reference to material at page 14, for instance, a psychological report – this incident was not mentioned. At the second paragraph starting:
Although in her original statement the Applicant had referred to some –
what was under the findings made or what is stated in that particular paragraph, nothing was put to the applicant, particularly the psychological report. If the Tribunal had any concerns about it, fairness required that this matter should have been put to the applicant to give her explanations. Had that been done, it is conceivable that the Tribunal might have discovered further information which may have swayed him the other way.
To tie up with the argument on natural justice, coincidentally, what the Tribunal – I mean, the real basis of the Tribunal finding, I think, it is submitted, turns on credibility and particularly the Tribunal focus was on this LTTE recruitment, the incident relating to her version as to how these two boys approached her and in an indirect way they were attempting to recruit her.
HER HONOUR: I do trust you understand that the issue before me, Mr Patel, is whether there is an arguable case? Yes, very well, go on.
MR PATEL: The information that – the question of fairness require that the specific material which was going to sway – on which the Tribunal was relying, whether it was in relation to the issue of rape, other incident, or LTTE recruitment or whether or not is only the young people who are recruited or whether she fits in the profile, or if there is any risk, regardless of whether or not, whether she had herself – any attempt had been made. If she were to return to Sri Lanka she said that she had this fear that she would be recruited. The Tribunal relied on a number of materials and none of it was specifically put to the applicant and applicant could only – the way the inquiry was conducted, it is apparent from the transcript that the information was coming in the form of drips, that the Tribunal was putting questions in relation to the information which she considered was necessary for him together to reach its decision.
So the Tribunal was in control as to how the information came and if there is certain information that did not come out the way he expected, he still had the role to put the questions in a way which would assist him to obtain that information. Now, while the applicant had the opportunity in a general way to put any material which she thought would advance her case, it must be borne in mind that the onus was on the Tribunal to gather that information which was material and not leave it entirely to the applicant to volunteer it. I am not saying that she was not under an obligation to volunteer what she thought was material, but her dilemma was this, that the inquiry proceeded in the form of questions and answers, and this is the reason, we submit, that certain information came about unexpectedly or for the first time before the Tribunal.
So the one incident, when she is particularly asked questions in relation to this incident, her mind is focused on that particular incident and then she enlarges. So it would be unfair to suggest that why did not she put this in before because it comes out it the form of questions and answers and if the inquiry does not lead into that particular area, the likelihood of that information coming would be much less.
The Tribunal formed the view, or relied very heavily, on what the applicant had said or had not said in an earlier hearing, certain other documentary evidence without giving the applicant the opportunity to say that, “Look, this is what we have”, so her mind is focused on that particular matter rather than ‑ ‑ ‑
HER HONOUR: Well, the question really is, the purpose of this hearing, which I do not think you seem to appreciate, is to determine whether there is an arguable case by reference to – and it will have to be the amended –well, I suppose it is the amended draft orders nisi. The latest ones being, I think, 26th June. Am I right in that?
MR PATEL: Yes, it is the only one amendment, your Honour.
HER HONOUR: And those orders nisi – as it turns out, the orders nisi –you do not rely on particulars under 1, 2, 3, 4 and 5?
MR PATEL: No, those were only natural justice.
HER HONOUR: But then the particulars you give there are the marriage to the Muslim and the second, the country information. There is no mention in those draft orders nisi of this issue about which you have been now putting argument for the better part of half an hour. It is not there, Mr Patel. It is just not there. Now, I have had occasion already once today to mention this matter. It is absolutely crucial, if these matters are to be properly heard and determined by this Court, that the documents marry up with the argument. It is not there, Mr Patel.
MR PATEL: Your Honour, I appreciate that, and I apologise. The reason was this, your Honour, that when ‑ ‑ ‑
HER HONOUR: I am not interested in the reasons. Either do you seek leave to amend it or do you not or do I ignore what was the argument, because, really, the documents have to be in order in this Court. This is not the Local Court at Manly. Do you seek leave to add a particular?
MR PATEL: Yes, your Honour.
HER HONOUR: Well, what is it? Let us have it precisely.
MR PATEL: Your Honour, by way of explanation, I should say that I did not have the transcript. We had great difficulty in getting the transcript. Some of the matters that could have been ‑ ‑ ‑
HER HONOUR: You had the transcript by 15 August. Today is the 30th. Is that not right?
MR PATEL: That is true.
HER HONOUR: That is right. You have not really given us written submissions going to these issues in the way that is the normal course, have you? Where are your written submissions?
MR PATEL: Could I just have a minute? They should be on the file, your Honour.
HER HONOUR: I have “Applicant’s Outline of Submissions”.
MR PATEL: They are from the applicant, your Honour?
HER HONOUR: The applicant. They are undated.
MR PATEL: That is the only one, your Honour.
HER HONOUR: Now, where in these submissions do I find reference to the issue about which you have been putting argument for half an hour?
MR PATEL: Your Honour, I will just briefly ‑ ‑ ‑
HER HONOUR: I tell you what, what you have in paragraph 11:
it was incumbent upon the Tribunal to investigate and obtain all the relevant information surrounding the claim of rape –
Is this your only reference to it in this submission? Let me ask a question, because this may be an important matter. Did you understand that this
matter was to be the subject of argument – and I ask this question because I am concerned about the way in which the Tribunal did seem to brush off the matter. Did you ‑ ‑ ‑
MR LLOYD: My outline of submissions in reply deal with how I understood the argument was put which is perhaps from paragraph 14. I should say my supplementary outline of submissions, the ones filed yesterday.
HER HONOUR: That is right. You say it is not currently pleaded which is what I am concerned about, because ‑ ‑ ‑
MR LLOYD: Certainly, if it is going to go anywhere it needs to be in there. We wrote to Mr Patel two weeks ago and asked him to particularise his claim properly so that we could deal with it.
HER HONOUR: Mr Patel, I am going to adjourn for 10 minutes and give you an opportunity to write out a particular which deals with this ground and we will then consider whether you should have leave to amend a draft order nisi to include it.
MR PATEL: Your Honour, while we are at this stage, as you will notice from the submissions, what we are attempting to do is say that the same grounds on which they succeeded in the High Court in Lie and Muin ‑ ‑ ‑
HER HONOUR: I know that, but that is “country information” ground.
MR PATEL: The other ground, also we would like to take it, because I was not – if I could be granted leave to take up that ground as well?
HER HONOUR: The amended draft order nisi of 26 June, I take it the whole of paragraph 1 goes out? You have not addressed any argument as to this, and I will tell you what I am also thinking: that in future, there should be a procedure in which these matters could be called over before the Registrar so that the issues can be identified, because it is far from satisfactory to have the Court’s time taken up in the way it has been on this issue. Now, ground 2), in your draft order nisi, is a reference to the denial of an natural justice?
MR PATEL: Yes, your Honour.
HER HONOUR: Particular 1) relates to the marriage to a Muslim, about which you have not made any argument, and I think you have difficulties about making that argument. Ground 2) is the “country information” which covers the Muin and Lie ground, but you have not anything about the rape. That is what is missing. There may be some significance in the way in
which the Tribunal seemed to brush off the issue of rape at the beginning saying – I think it is at page 10, is it, or page 14, saying he did not need to pursue that, and then in the way in which it is dealt with in the Tribunal’s reasons. Now, I am going to give you 10 minutes adjournment for the purpose of coming up with a draft particular that properly raises that matter, and then we will see whether or not there should be leave to amend. Very well.
MR PATEL: If your Honour pleases.
AT 11.11 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.43 AM:
HER HONOUR: Yes, Mr Patel.
MR PATEL: Your Honour, if I may hand - - -
HER HONOUR: Thank you. Now, you seek leave to amend your - - -
MR PATEL: - - - particulars and - - -
HER HONOUR: - - - particulars of the amended draft order nisi filed on 26 June in this matter.
MR PATEL: Yes, your Honour.
HER HONOUR: That is in - - -
MR PATEL: - - - in relation to incident of rape.
HER HONOUR: Yes. So, you wish to add a further particular, particular 3, do you?
MR PATEL: Yes, your Honour.
HER HONOUR: In terms. Well, now, what do you say, Mr Lloyd?
MR LLOYD: If I understand that this entire thing is one particular rather than two particulars and the references to “documents and material” is only
a reference to the psychology report, then, if that understanding is correct, I suppose I do not object to the form of it because I think I know what it means. As to the amendment, whether the Minister, I suppose, objects to the unamended version on the basis that it is outside of time. So, without giving up that amendment – I do not suggest that there is any prejudice that I am incapable of responding to this today - - -
HER HONOUR: This is outside of time. This is the general objection?
MR LLOYD: This is a general objection to the original unamended version. It was about eight months after the decision, but - - -
HER HONOUR: Yes. Is it affected by – it is not, however, affected by the - - -
MR LLOYD: It is not affected by the amendment.
HER HONOUR: No. So, this is a discretionary consideration.
MR LLOYD: And I do not suggest that I am prejudiced and that I cannot address it today.
HER HONOUR: Very well. Well, you have leave to amend accordingly, Mr Patel. Now, let me be quite clear. Are there any other particulars you are wishing to address in relation to natural justice or procedural fairness?
MR PATEL: On the basis of the application, I appreciate that I am not entitled to take up the Part B documents, whether or not the Tribunal – and the other issue that was considered in Lie and Muin in relation to the documents that were before the primary decision‑maker, whether this had been transmitted to the Tribunal and whether the Tribunal had all the documents which were supposed to be delivered by the secretary. So, that argument, of course – the way the application has been put is in very broad terms and in the written submissions we have - - -
HER HONOUR: Well now, let me get this straight. You have another argument about documents not being transmitted to the Tribunal?
MR PATEL: That is true, your Honour.
HER HONOUR: Was that the basis of the decision as such in Muin and Lie? I did not think it was.
MR PATEL: I thought the majority - - -
HER HONOUR: I thought there was an additional particular which said that those people believed the documents had been forwarded and that had they not been forwarded, they would have made sure that the information was before the Tribunal.
MR PATEL: I think the majority judgment – at least his Honour Justice Kirby, for instance, mentioned that there was an obligation on the part of the secretary to forward all the documents and - - -
HER HONOUR: Well, in that case, Mr Patel, I will adjourn again but I am rapidly losing patience with the way this matter has been prepared or not prepared, as the case may be, to see what is the additional particular you would rely on in that regard and I will want to know where the evidence is in relation to it in these papers. Now, when did the decision come down in Muin and Lie?
MR PATEL: I think it was 8 August, if I am not - - -
HER HONOUR: Exactly, 8 August, and the direction I gave on the last occasion – I am really losing patience in this regard – was that any further evidence or materials had to be filed on 16 August. Now, I am prepared to give you leave to include this further particular, that being a particular, the details of which can be addressed, it seems, adequately by reference to the material that you have since filed, but I am not in the least bit sure that you can make out a Muin and Lie argument by reference to the material you have filed.
Now, look, this is really being most inconsiderate of the Court’s time and obligations to have the matter in this state at this stage; but 10 minutes and I will see if you have another particular. Is there more than one?
MR PATEL: No. Your Honour, I should indicate that that is the argument we would not pursue. I think we will just rely on this particular.
HER HONOUR: You are not pursuing that argument?
MR PATEL: No. The thing is the only way I can make the argument – the trouble we had – the difficulty we had, that, first, we had problems getting the transcript. After we got the transcript I did not have all the material before me plus, although the decision was published on 8, I became aware of it a bit later than that and by that time - - -
HER HONOUR: I think you had better get instructions about this, had you not? If there is an argument there to be made - - -
MR PATEL: Yes. Argument can be made on the basis that her mother – that this application - - -
HER HONOUR: No, do not tell me on which basis it can be made.
MR PATEL: There is a class action and she was named – the same matter forms part, I understand, of the class action where the same documents were transmitted in both the matters, her mother’s case, and are exactly identical. Her mother became part of the class action and because her matter was in the appeal she did not join the class action. Now, we have this position that if she succeeds on the argument in Lie, we have this discrepancy that whereas her mother gets it - - -
HER HONOUR: Yes, but the argument in Lie did not rely solely on documents not being transmitted, did it? Well, perhaps you had better read it. It is my recollection that it did not rely solely on the non‑transmission ‑ ‑ ‑
MR PATEL: I think there was a - - -
HER HONOUR: Well, the argument may have but I do not think the decision relied solely on the non‑transmission of documents.
MR PATEL: I think the majority judgment seems to support that view. There is not express - - -
HER HONOUR: What do you mean, “the majority judgment”? Do you mean - - -
MR PATEL: That she was successful in the sense that she did not succeed on the other ground that the information which had come lately before the Tribunal was not put to her and, as I understand, her case - - -
HER HONOUR: You never answer the questions I ask of you, Mr Patel. What do you mean by “the majority judgment”? If you tell me what you mean by it, I will go and look at it and see what it did decide, but what do you mean by “the majority judgment” in Muin and Lie? Whose judgment are you referring to?
MR PATEL: Refer to, say, judgment of Justice Kirby.
HER HONOUR: That was a single judgment, was it not?
MR PATEL: Yes. He was in favour of the - - -
HER HONOUR: Yes, but his was not “the majority judgment” was it?
MR PATEL: No, it was not.
HER HONOUR: Well now, what do you mean by “the majority judgment”?
MR PATEL: The judgment the other Justices, apart from Justice McHugh and Justice Callinan, granted relief to - - -
HER HONOUR: Was there a single judgment?
MR PATEL: No. There was no specific - - -
HER HONOUR: All right, so there was no such thing as “the majority judgment”? Am I right in that?
MR PATEL: In a sense it is difficult to say because majority judgment they proceeded on different grounds but they did not reject wholesale the idea, except Justice McHugh and Justice Callinan. They refused to grant relief to Lie, whereas she was successful as far as the remainder of the Justices were concerned, Justice Gummow, yourself and Justice Kirby. So, with the exception of Callinan, he refused to grant the - - -
HER HONOUR: Yes. Well, I know what was decided in that case. What I am trying to work out is what you think was decided. Now, I have never had a case argued in the way you are arguing a case, without reference to the documents, without reference to the judgments. Now, you should take instructions on the question whether you wish to raise another issue because there seems to be people behind you who are indicating vigorously that you should take this point. For my part, I do not see that any of the judgments avail you of the point, but your clients seem to think that the point should be taken. If it is to be taken, then I want a particular of it and I wish to know what, if any, application you make to provide evidence to support it. Again, I will adjourn, but I really am finding this a most unsatisfactory set of proceedings. I will adjourn for 10 minutes.
AT 11.56 AM SHORT ADJOURNMENT
UPON RESUMING AT 12.20 PM:
HER HONOUR: Yes, Mr Patel.
MR PATEL: I hand over the photocopy.
HER HONOUR: You had better tell me this ‑ ‑ ‑
MR PATEL: That is particulars in relation to the other ground that documents which ought to have been conceded and which should have been given to the Tribunal to considered the applicant believes were not ‑ ‑ ‑
HER HONOUR: The applicant has to prove it.
MR PATEL: Your Honour, it ‑ ‑ ‑
HER HONOUR: There is much more to the Muin and Lie ground than what you there assert, is there not?
MR PATEL: In our submission, your Honour, there is a similarity in that. The documents which should have been transmitted – at this stage of course, there is no evidence other than mere assertion.
HER HONOUR: Exactly. What do you want to do about the evidence?
MR PATEL: The evidence can be obtained, your Honour, in that there is acknowledgement, or at least it is common knowledge that the way the Tribunals conceded….decisions ‑ the system that operated during the relevant time, including when this decision was given, it is on record in Muin and Lie that shows the system that operated was there was a common pool of information and the procedure was that the Tribunal members simply hooked onto the computer and got whatever information the Tribunal believed would assist in its determination of the matter. So, while there is no direct evidence we can lead at this stage ‑ ‑ ‑
HER HONOUR: What do you want to do about the evidence? For example, do I have the decision of the immigration officer dated 12 March 1999?
MR PATEL: Yes, your Honour. We tender that.
HER HONOUR: No, do I have it?
MR PATEL: Yes, your Honour.
HER HONOUR: Do I have it?
MR PATEL: That is the one I tendered just now with the particulars.
HER HONOUR: All right, I have that.
MR PATEL: In reaching its decision, the immigration officer considered the evidence which forms Part B. Basically it contains ‑ ‑ ‑
HER HONOUR: In Muin and Lie there was then evidence of correspondence and there was affidavit evidence.
MR PATEL: Your Honour, that was for hearing. It was a representative action.
HER HONOUR: I have to see that there is a prima facie case. There is much more required than this document and the original decision required to make out a prima facie case.
MR PATEL: Your Honour, the decision in Lie and Muin I think at least points to the fact that there was admission on the part of the respondent in that case as to how the system operated, that it was not the usual practice to physically deliver all those documents. It was left to the individual Tribunal member to have access to the information through the computer. If that is the case, then, unless the immigration – because they are in a better position than the applicant ‑ ‑ ‑
HER HONOUR: All right, I give up. I am trying to help you but I give up.
MR PATEL: I apologise, your Honour.
HER HONOUR: I would not have thought it was sufficient to have said, “which the applicant believes were not delivered to the Tribunal”. I would not have thought it was nearly sufficient to say that. There was more to Muin and Lie than the non‑delivery of the documents. The next thing, I would have thought, was that there would need to be evidence of the kind there was in Muin and Lie upon which it could be said that the applicant could have been misled, but I do not have that and I am asking is there anything you want to do about that? I am putting two things to you. One, it does not seem to me that the particular raises what was in fact decided in Muin and Lie; and two, if it did, you would still, I think, need some evidence. I am asking you if you want to do something about evidence.
MR PATEL: Yes, your Honour. I seek leave to – the only way I can ‑ ‑ ‑
HER HONOUR: No, the point of the evidence may involve some reference to the documents but the point of Muin and Lie was the letter that had come from the Tribunal.
MR PATEL: Yes, your Honour. We can tender that.
HER HONOUR: I would have thought your client might have had some difficulties coming and saying at this stage that she was misled and not having said so before, but that is an evidentiary difficulty. It may simply be a matter for cross‑examination and forming a decision as to credit. If you wish to raise this ground, then I am not prepared to deal with it on the papers as they presently stand and I am certainly not prepared to deal with it on the particular that you have drafted. That is not to say I would not consider it or consider an application for amendment if it were properly drafted and there was evidence to support it.
MR PATEL: Yes, your Honour, I will attend to amending the particulars.
HER HONOUR: I think what you need to do is to read the decision. I do not think you can do it on the run. Do you have any application to make in that regard?
MR PATEL: Your Honour, I make an application for an adjournment so that we can put our house in order and get the necessary evidence and we will put in more detailed submissions which would not ‑ ‑ ‑
HER HONOUR: You would have to at least offer to pay the costs of the day. This is a most unsatisfactory way of proceeding. What do you say, Mr Lloyd?
MR LLOYD: I certainly would adopt what your Honour says about the inadequacy of the pleading. Even if that were fixed and even if the applicant were to establish that there was something beneficial in the Part B documents, as I understand the facts – and of course there is no evidence ‑ ‑ ‑
HER HONOUR: That is the trouble, is it not? There is no evidence.
MR LLOYD: But there is enough before the Court to suggest that however the applicant does it, they will never get to a Muin and Lie point because in Muin and Lie the problem was the Tribunal had sent out a letter which was misleading. Applicant S154/2002 has an advantage over Mr Muin and Mr Lie, namely that she has had a second hearing. So in the unlikely event that she was in fact misled as to the practices of the Tribunal and thinking that the Tribunal took those Part B documents into account, she would have known when she lost the first time that that did not happen and she would have had no basis to expect to think that the second time where that did happen. So there just would not be a basis for it even if my friend could get over all of the other problems in his path, in my submission.
HER HONOUR: That seems to me to be likely but I do not know. It seems to me that that is likely.
MR LLOYD: Other than to say that my recollection is that the first time my friend asked for an adjournment, the Court indicated that he would have to do everything by about 8 July and my friend then got a long adjournment because of my unavailability and then your Honour’s being away, and this would be yet another time. There is no real prospect my client will ever get costs, but certainly we would want costs if an adjournment order were to be made. There were costs ordered on the last occasion as well. Other than costs, I cannot say that there is any other prejudice. It is just that it just goes on and on.
HER HONOUR: Yes, Mr Patel.
MR PATEL: Your Honour, I once again tender my sincere apology for the predicament in which I find myself and the Court, but the problem is I should at least bring to the attention of the Court the particular circumstances in which I have come to accept the instruction and assist the applicant in this matter. As you would recall, your Honour, the very first time when I appeared I did not have any paper, nothing. The applicant was not here and I knew absolutely nothing about the matter. Thereafter the applicant has her own problems which I appreciate but that does not help me. She had to go to Queensland. There is no solicitor on record and I say that while I can assist in her case, it all depends on the material that is before me and, without proper material, it gets harder and harder for me to do proper justice to her case.
In those difficult circumstances, I have endeavoured to do my best and I have impressed upon the applicant that, although she does not financial resources and she has her own problems, a family problem as well as financial problems, it is important that we use our resources the best way we can and get all the material before the Court in a way that would assist her case.
HER HONOUR: But I am not too sure that you have succeeded in that.
MR PATEL: The first time we got the tapes they were blank, then she had to go again. The difficulties were compounded by the fact that she is in Queensland, and half the time even to communicate with her was difficult. Having said that, I can appreciate that there is a limit to how much the Court can show its patience and grant her this indulgence.
HER HONOUR: On what basis could it – do not tell me on what basis, but can you think of a possible basis on which, given that there have been two Tribunal hearings, this applicant could have been misled?
MR PATEL: Your Honour, whether rightly or wrongly, the thinking before this High Court decision was on the line that the procedure being adopted, right or wrong, that was the legal position. That was received. She is not a qualified lawyer and the advice she received was – she was dependent on the advice she received from the lawyers who represented her and if the lawyers took the wrong view prevailing on those conditions at that time ‑ ‑ ‑
HER HONOUR: No, no, I am talking about the Muin and Lie ground, the decision of the Minister’s delegate in which the Minister’s delegate refers to three documents. There is then a decision of the first Tribunal which I presume - but I do not know because the papers are not in any sort of order in which I can make an analysis of them. But I presume when she got the Tribunal’s first decision, she thought she could work out whether or not the documents had been referred to. The complaint before me is in relation to the second Tribunal’s hearing. On what basis could she have been misled into thinking that the second Tribunal would have regard to the documents in light of her having already been to the Tribunal once before? The question I am asking is: can you think of any possible basis on which she could have been misled?
MR PATEL: She would have been misled in that ‑ ‑ ‑
HER HONOUR: Not would have been; could have been.
MR PATEL: Yes. Under the legislative schemes, she would think that all these documents – before paper decision was made, this material was considered by the Tribunal. Having looked at the material that was before the immigration officer, it reached the conclusion that no, there is something ‑ ‑ ‑
HER HONOUR: I understand how it might work in relation to the first Tribunal decision but you have to deal with the second Tribunal decision.
MR PATEL: Yes. The second Tribunal would be obliged to ‑ ‑ ‑
HER HONOUR: Do not worry about what the Tribunal was obliged to do. The question relates to a basis on which your client could possibly have been misled.
MR PATEL: That the second Tribunal also had been delivered the same material that was before the immigration officer, because in fact it was reviewing the same decision. The fact that it was being reviewed by a second Tribunal does not ‑ ‑ ‑
HER HONOUR: All right, you are not going to answer. It does not deal with the issue, but all right.
HER HONOUR: I will grant the adjournment. Your client will need to be present for cross‑examination. At the very least, there will be a serious question of fact to be decided as to whether she possibly could have been, and indeed was, misled.
An amended draft order nisi, including proper particulars as to the rape matter to which argument was made earlier today, and the non‑forwarding of documents should be filed within 7 days. The amended draft notice should not include any grounds that are no longer relied upon. Full affidavit evidence should be filed within 10 days. Proper and detailed submissions should be filed by the applicant on all issues relied upon within 21 days.
You may need to file some supplementary affidavit material, Mr Lloyd. You will do that within 7 days of the receipt of any affidavit material to which answers should be filed.
The applicant/prosecutor is to bear all the costs of these proceedings to date, including particularly the costs of the respondents.
MR LLOYD: Your Honour, would it be possible if the respondents’ evidence was a week later? I will be away at the moment for the entire week that it is due.
HER HONOUR: All right, within 14 days. That gives them 21 days to file written submission rather than what I said.
The matter will be listed for hearing on 14 October. That is the first date I can do it. It will be listed before the Deputy Registrar in the week commencing 7 October here in Sydney to ascertain that all the papers are in order. That, I think, is all I can do, is it not? I should certify for the attendance of counsel.
MR LLOYD: May it please the Court.
MR PATEL: If it please the Court.
HER HONOUR: Adjourn to 9.30 am on 14 October. There will be no further adjournment. So, Mr Patel, it does not matter what the
circumstances, you have now ample time to get the documents in order, the evidence on and so forth.
MR PATEL: As your Honour pleases.
HER HONOUR: Yes, very well. We will adjourn to 9.30 am on 14 October.
AT 12.45 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 14 OCTOBER 2002
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Civil Procedure
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Standing
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Appeal
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