H & Anor, Ex parte Re RRT

[2001] HCATrans 48

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S276 of 2000

In the matter of -

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

First Respondent

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

Ex parte -

H and G

Applicants

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 27 FEBRUARY 2001, AT 10.17 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:  If the Court pleases, I appear for the prosecutors with my learned friend, MR P.H. GODWIN.   (instructed by R.A. Kessels)

MR S.J. GAGELER, SC:   If your Honour pleases, I appear for the second respondent.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Now, Mr Game, I have had a look at the papers in this matter.  Just before we get too far into the detail, it seemed to me there might be some benefit in considering the procedural future of it.  There are a number of possible courses open to me, one of which is to refer the application for an order nisi to a Full Court. 

MR GAME:   We would be happy with that, your Honour.

HIS HONOUR:   Let me just explain in a little more detail because we may be able to refine the procedures a bit.  By a Full Court, I mean a Court consisting of three Justices, including myself.  Now, I do not imagine that it is necessarily attractive to the parties or their legal representatives to pay a visit to Canberra about this matter.  We are here today:  you have your argument ready to put.  The possible course of action that we could take if this were agreeable to the parties - and I would not do it without the consent of the parties, and you might need to get some instructions - would be to say you put your arguments today to me and they will be recorded on the basis that the three Justices who deal with the matter, one of whom will be me, will then make their decision on the basis of your written submissions and the oral argument that is put today.

MR GAME:   That is something about which I would have to take some instructions.

HIS HONOUR:   Yes.  Well, why do I not adjourn for a couple of minutes and you get some instructions about that.

MR GAME:   Certainly, your Honour.

HIS HONOUR:   Because what I have in mind is that that would produce the result that I would sit here today and listen to the arguments of both sides; they would be recorded; we have the written submissions.  As I understand the case, it is a question of looking at the transcript of 30 or 40 pages of hearing before the Refugee Review Tribunal and forming a view, one way or the other, on the question of apprehension of bias on the basis of that material.

MR GAME:   Yes.

HIS HONOUR:   All right, I will adjourn for three minutes.

AT 10.20 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.24 AM:

HIS HONOUR:   Yes, Mr Game.

MR GAME:   Your Honour, I can say that procedurally the parties find that course acceptable but with one small proviso which is a legal question, for instance, a legal question about whether or not apprehended bias is different with respect to a tribunal to a court is a question we have not really addressed in detail in the submissions because we thought we were coming here to argue for an order nisi.

HIS HONOUR:   Would you like an opportunity to put in supplementary written submissions?

MR GAME:   We would like an opportunity, yes.

HIS HONOUR:   Yes, and I think there is one qualification, on reflection, that I should have added and that is, of course, it may be that the other members of the Full Court would want to hear some further submissions on something arising out of what is said today, and I cannot foreclose that possibility.  In other words, I cannot guarantee you that there will not be some necessity for further oral submissions.

Well then, what I will do is indicate to the parties that this application for an order nisi will be referred to a Full Bench consisting of myself and Justices McHugh and Gummow, and I note that with the consent of the parties, we will proceed upon the basis that I will hear oral submissions from both parties today and both parties will have an opportunity after today to supplement their oral submissions with further written submissions.  In the case of the applicant, the applicant will have 14 days from today, and in the case of the second respondent, the second respondent will have a further seven days after that.

Subject to a qualification I will mention, with the consent of the parties, we will proceed on the basis that the Full Court will decide the matter on the basis of the material that is presently before the Court or that will be put in oral argument today or in the supplementary written submissions to which I have just mentioned.  The qualification is that I have mentioned to counsel already that I cannot foreclose the possibility that having considered those submissions and read that material, the Court might find it necessary of its own motion to seek further oral submissions.

MR GAME:   If the Court pleases.

HIS HONOUR:   Yes, Mr Game.

MR GAME:   Now, formally, your Honour, there are two affidavits of Mr Ronald Kessels, and I read both of those affidavits.

HIS HONOUR:   I have one here that is sworn 26 February.

MR GAME:   Yes, and there is another one - yes, your Honour.

HIS HONOUR:   And the other one is of what date?

MR GAME:   It is 23 November.

HIS HONOUR:   Is there any objection to those, Mr Gageler?

MR GAGELER:   No, your Honour.

HIS HONOUR:   I read the affidavits of Ronald Kessels of 23 November 2000 and 26 February 2001.

MR GAME:   Can I ask your Honour, have you had an opportunity to read the material that appears in the affidavits?

HIS HONOUR:   Yes.

MR GAME:   The first thing is we have an application for a pseudonym order and I understand that is not opposed.

HIS HONOUR:   I am happy to make that order.  What is the form of the order that you want me to make, Mr Game?

MR GAME:   In paragraph 5 of the affidavit of Mr Kessels of 26 February 2001, he indicates that he seeks an order that the prosecutors:

be referred to by the pseudonyms "H" and "G" throughout the proceedings -

and we would ask for an order in those terms.

HIS HONOUR:   All right, by consent, I will make an order in those terms.

MR GAME:   Thank you, your Honour.  Now, your Honour is, I take it, by now sufficiently familiar with Part 8 for me not to trouble your Honour with the terms of Part 8 of the Migration Act.  Your Honour would be aware that the application is based on actual bias were unsuccessful both before the single judge and the Full Court in the Federal Court.  We come here today grounding our case on that aspect of the Rules relating to denial of procedure fairness that is concerned with apprehended bias.

We ground our case for constitutional writs under section 75(v) on the recent decision in Aala, and, again, I do not think it is necessary that I take your Honour to any of that material.

It comes down to - and I think this is a matter about which the parties would readily agree - an examination of the transcript of the two days and what one makes of it.  Now, your Honour, what I propose to do is to take your Honour through that transcript and endeavour to identify what we see has being troubling aspects of the transcript.  Ultimately, it will be a matter for your Honour and the other two Judges who determine the matter to form their own assessment of that material as is required by the bias cases:  Webb, Livesey and so forth, and, again, that is territory that is very familiar to the Court.

HIS HONOUR:   Would you just excuse me, Mr Game.  I want to find the most convenient way to put my hands on that transcript.

MR GAME:   It is page 177 of the affidavit of Mr Kessels is where it commences.  What I actually propose to do, your Honour, is to point - - -

HIS HONOUR:   Page 177 of exhibit RK1 to the affidavit of Mr Kessels of 23 November 2000.

MR GAME:   Yes.  What I actually propose to do is to take you through that and say why we see the passages as being of real concern and why the Court, making its own assessment, would come to the conclusion that a case of apprehended bias is made out in the terms as recently enunciated in Johnson v Johnson, but that follows a line of case of this Court which I will not trouble your Honour with.

If I take your Honour to page 177.  The first thing that the Tribunal member said when he wanted the full pronunciation of the male prosecutor's name or the male applicant’s name, he wanted him to pronounce his name again.  He said, because:

I need to know how to pronounce all these names. 

He said, “I’m determined to become a cricket commentator”.  Now, in our submission, that is a completely inappropriate remark for a tribunal member to make and quite belittling of an applicant.  It would be like a Mexican applicant coming along and the Tribunal saying he is thinking of buying a pet chihuauhua or something of that kind.  It is just completely out of place.  Then there are some preliminaries that go along until page 180, and the Tribunal member asks - can I just pause, your Honour?  When considering this material, it will be necessary for the Court to have read carefully both what the applicants said in their primary applications and what the primary decision-maker had to say because, of course, the Tribunal member was seized of and would have read that material at this point.

At page 180 there are questions asked about race:

Mother a Tamil?

Mr H:   Yes.

MR HOYSTED:   Father Singhalese.  You’re from Colombo?

MR H:   Yes, from Gaul, actually.  My home town is called - - -

MR HOYSTED:   You are from Gaul?

MR H:   Yes.

MR HOYSTED:   Where the test match is going on this weekend, isn’t it?

And he is back to the cricket.  And then 181, he is more interested in asking questions about this town:

It’s down on the coast, isn’t it?

. . .

It was an ancient Portuguese port, is that right?

. . .

And very pretty they say in the paper?

Now, that, in our submission, is entirely gratuitous.  And this is at the very beginning of the hearing.  Now, then, at 182 - - -

HIS HONOUR:   Could you just remind me, Mr Game, who was present on this occasion?  Obviously, there was Mr Hoysted, the Tribunal, and your two clients?

MR GAME:   Yes, but he asked Mrs G if she would step outside while Mr H was giving evidence.

HIS HONOUR:   So, there was just the two people there?

MR GAME:   Well, I expect there would be a monitor and maybe the Tribunal member’s tipstaff or whatever they call them in the Tribunal.  I will just check.  No one else, just the two of them, I am sorry, your Honour.

HIS HONOUR:   What are the physical circumstances in which this takes place?  It is a hearing room of some kind.

MR GAME:   It is like a court, I think.  I think it is like a court.  If it is anything like the AAT, it is like a rather plain court.  It is just a bit smaller, it is like a rather plain and small court.  But, of course, one thing about apprehended bias is that it incorporates not only the ordinary - - -

HIS HONOUR:   I am sorry to press you on this, but I would like to understand it a little better than I do.  When you say it is like a court, do you mean the two of them are sitting opposite one another at a table or is there a bench?  What are the physical arrangements?  It just occurs to me as a possibility that it could have some bearing on the way you would expect these two people to be communicating.

MR GAME:   Certainly, your Honour.  I am going to have to ask this question.  First of all, there is a bench but it is not as high as this bench.  I am told that when they are sworn in, they do not go into a witness box, they sit at a table and give evidence but the - - -

HIS HONOUR:   I assume, Mr Gageler, that unless you contradict anything that Mr Game says about this, that it is common ground.  Yes.

MR GAME:   Then we come to the next page, page 182.  Sorry, I meant to interpolate to say one thing is - and again, I am saying things that are obviously so well known to your Honour that they do not really bear repeating but one of the things about apprehended bias is that is not only the objective or ordinary bystander but it is also the perception of the parties that is of importance; the reasonable party, not duly sensitive parties that is important.  So, the position of the male applicant in this situation is obviously of considerable importance in assessing the “apprehended bias” question.

Now, at page 182, the Tribunal asks him a question about his passport.  He says:

Now, nice full passport, done plenty of travelling?
 . . .
Cheap fares?
 . . .
Free tickets?

I do not know exactly how he said it but that reeks of sarcasm, in my submission.  He starts to explain his claim, on the following page, 183:

So, I had some involvements . . .I think the government authorities they will track us at the airport itself.

He said:

I compelled to assist the LTTE - - -

HIS HONOUR:   Just before you go further, in relation to that last matter, I do not think I noticed it in the evidence, if it is in the evidence, but what were the circumstances under which your clients arrived in Australia before making this application for a protection visa?

MR GAME:   I will just turn that up.  It is at page 74.  They came here on a three‑month visa.  And then at 183, he is trying to explain that:

So they kept my mother-in-law in…..on her visit –

and it emerges that is in about June or July.  Then at the bottom of 183:

They have got to know that I have assisted the LTTE, so – because they have broken into my house.

That is a reference to the police.  And he learned that after his departure:

after my departure I got word so – somewhere in – I don’t remember the periods, it’s about two or three months later I got to know that they have broken into my house; the police –

so, from that he inferred that the police were aware of the circumstances in which he had been compelled to assist the LTTE.

Then on the following page – and this is a feature, in our submission, of this case – the Tribunal member does not really ask questions that are inquiring questions that get to the bottom of anything.  The Tribunal member asks several times:

But what are the authorities going to think? . . .what does that mean; what are they going to think –

he asks that over and over, and then he says:

No, I’m not asking you what you did.

But what he did is really quite important, but then he says:

They’re going to think that I gave them accommodation.

And that is what he had been saying on the previous page.  In a way, it is the impatience of the Tribunal and not listening to the answers that are being given that is causing the problems, not the inability of this applicant to explain his case.  Then on page 185, about point 4, he says:

The police has broken into my house and she has asked for money for that, actually, for the – the happenings – for the – they have destroyed the things, they have destroyed my - - -

and then the Tribunal member says:

I don’t understand what you’re saying.  How are the police to know that you had – that you had provided accommodation to the LTTE?  I don’t understand it.

And then he says:

So you believe that the neighbours told them?

MR H:   Yes that’s one thing. 

And then he talks about the phones being tapped.  Then over the page – obviously Mr H became upset at this stage because he gives an answer and the Tribunal says:

just calm down, Mr H. 

Then he says, about point 7:

On what do you base your belief that the neighbours had informed on you?

Actually, they didn’t like – I – we lived there – we live in that place, the people around us, they didn’t like anyway a Tamil person living in an area with them actually –

but it turned out that some neighbours also – we will come to this but some neighbours came from Galle and they knew that he had been married to the daughter of a Tamil woman because the mother had taught Tamil at the local schools. 

MR HOYSTED:   The neighbours didn’t like a Tamil person - - -
 . . .
MR HOYSTED:   How did they know your wife was Tamil?

And then over the page:

How would they know?

Then:

MR HOYSTED:   What I don’t understand is how they’re going to know that your wife’s – you need to explain to me - - -

MR H:   It’s a known fact, like.

MR HOYSTED:   You need to explain to me.  She looks just like you to me.

And then the next thing:

MR HOYSTED:   At a glance they can tell if you’re Tamil or a Singhalese?

MR H:   Yes.  Yes.  She has a Tamil – a little bit of Tamil.  I’m not saying that she’s completely a Tamil.  She doesn’t have it complete, like, they can get to know that at a glance.  In a way – it’s not the reason – it’s not the reason they - - -

And then at the bottom of the page – and we would interpret this as him thinking that he has succeeded in persuading Mr H out of his evidence – he says:

They can’t tell by looking at her, can they?

So, he is assuming that he has a favourable answer.  And then he says – but that is not what Mr H was saying.  What he was saying was, they knew that, not because what she looked like but what they knew about the family.  And at the top of 188:

They can do that, they – she has a Tamil mother.

MR HOYSTED:   By looking – look, my son is half Chinese but you can tell that by looking at him but you can’t tell that your wife’s part – has a Tamil mother by looking at her, can you?

Now, that is, apart from anything, insulting to say that he can tell that his son is half Chinese but you could not tell that his wife was half Tamil.  Any case, he has got the wrong end of the stick.  He thinks he has persuaded him out of the proposition that his wife does not look Tamil but that is not correct.  Then he says:

No, it’s not the reason but you can say that but it’s not the reason they get to know.  It’s not the way they got to know.  So, they got to know.  I think they got to know by the people I told you – three houses - - -

MR HOYSTED:   She doesn’t speak Tamil, does she?

Now, this is repeated many times through the transcript and it is repeated three times in his reasons.  And then, again, he says:

She can’t speak Tamil, can she?

And then further down:

She speaks, reads and writes English and Singhalese and no mention of Tamil at all.
. . .
She doesn’t speak Tamil?

And then:

MR HOYSTED:   She understands some Tamil, doesn’t speak it?

Over the page, 189:

MR HOYSTED:   Understands a little bit of Tamil but doesn’t speak it?

Then Mr Hoysted asks a question as though as he has succeeded in cornering Mr H:

So if she doesn’t speak Tamil and she doesn’t look Tamil how do they know she’s - - -

“Tamil”, he was going to say.  Well, no cross-examiner would be permitted to ask that question.  Those are what he would like to be the case and he is then putting it but what is also important here is that he is not – this does not smack of an inquiry where one is trying – how an inquirer would find out what the truth was, this is the Tribunal member really just keeps raising over and over again his own preconceptions.  And then:

You think she does look Tamil?

Yes, definitely, but it’s not the reason that I’m saying.

So how do the neighbours know she’s Tamil?

They – they’re from Gaul, the three houses from my place.  There is a family from Gaul.

And then he explains in that long answer, they knew from family background because he came from Galle and his wife he married her mother taught Tamil and that is how they knew and that was the connection.  Then, on the top of the next page, 190 – so what I say, what comes out of all that is that there is a perfectly explicable position from Mr H’s point of view.  In fact, the absence of any form of interaction and simply dispiriting rejections with his own preconceptions is coming from the Tribunal. 

Then at the top of 190:

But how would anybody know who they are?  They wouldn’t carry a sign around saying we’re LTTE, would they?

Well, again, that is a sarcastic question.  And then that goes on.  He gives an answer.  Mr Hoysted says:

and they might even be able to tell that they’re Tamils but how could they tell that they were LTTE?

MR H:   That is the one point I’m saying…..got to know that the police get to know by saying –

and there is evidence in this case and it was evidence that was before the Tribunal that their house had been searched after they left and he had just given that evidence a few pages before.  Then, more questions about Tamil.  At the bottom of the page:

When these Tamil people came and stayed how did you talk to them?

MR H:   They speak English.

And then over the page at 192, it says – this is in relation to the mother being kept hostage so that they could – or being kept for 20 days when she went to the Gathnu Peninsula to visit her family. 

They kept your mother-in-law where?

MR H:   …..  She went on a holiday to visit her parents; my wife’s grandparents.

MR HOYSTED:   And the tigers kept her there?

MR H:   Yes.

MR HOYSTED:   So that they could force you to provide accommodation.

At the bottom of the page:

Just to get accommodation for four days?

Well, maybe I am reading too much into that but he seems to be making fun of him there when he says “And the tigers kept her there . . . Just to get accommodation for four days?”  It then goes on.  At page 194 there is a reference by Mr H to a Mr M and he speaks about Mr M in his application and the Tribunal member should have known about Mr M.  He said, at point 6:

And there was another LTTE member who’s – who was working for A.

MR H:   He came after that – he came after that, after this incident.

MR HOYSTED:   When was that?

MR H:   It was after that, it’s about a couple of months later –

and then the Tribunal member says:

These are pretty significant things.  I’m surprised you can’t remember what month it was?

Well, the delegate dismissed part of the case because of problems with dates, but if the mother was taken hostage in June/July and they left in September, that only leaves August and, really, there is no imprecision about when that occurred.

HIS HONOUR:   Just remind me:  what is the year that your client was speaking about?

MR GAME:   1997.

HIS HONOUR:   Thank you.  This information is being given in September 1999?

MR GAME:   That is correct.  Then there is – I will not read it to your Honour but I will just give you a reference for the passage where his primary application – the relevant part of his application is to be found.  It is at page 40.  I will come back to that.  At page 195, he says:

He’s a Tamil?  M - - -

and this person is a crucial person in the applicants’ account.  Then page 196 – I was going to give you the page reference.  I am sorry, I am jumping about.  The page reference is 49 and following for the material relating to the primary application.  Now, page 196 – so this is about Mr M.  He makes requests.  He wants a red permit so he can go to a certain part of the airport.  And then at 196:

Did he tell you what he wanted it for?

This is the red permit.

No, no, he didn’t.  He said he just wanted it for - - -

Did he tell you he was a Tamil…..tiger?

Well, really, the context in which these things occur is far more sinister and frightening than calls for smart alec remarks like that, in our submission, your Honour.

Now, 196, point 7 – and he goes on:

A person came another day after – after these incidents.  One person came to my place with a camera, he is a Tamil but he spoke Singhalese.

So, this is the person about the camera.  And then he asked questions about a phone:

No, I don’t have a telephone at home. 

And then he is asked for a list pilots – 198.  And then 199, point 5:

MR HOYSTED:   You see, at the moment all I have is – is this; that the police might have been told by your neighbours that you had Tamil visitors and the police may have heard somebody on the phone speaking to you in English ask for a list of Tamil pilots but if they heard that surely they would have come and questioned you about it?

Well, that is, really, not a fair statement of what has been put to him so far both by way of the primary claim and the oral evidence.

Then at page 200, about the tapes, there is a strange exchange about the tapes and disagreement about how you would store tapes.  Then at page 200 Mr M’s name gets mentioned.  He has already been mentioned at page 52 in the primary application.  Mr Hoysted says:

Who’s he?

That’s the LTTE member who is working for A.

Then 201, point 2:

But you haven’t helped him?

But helping the LTTE was at the heart of his case:

I helped him.

What did you do?

Sir, I gave them accommodation.  He – he came and thanked me for that . . . I got to know him then.

He thanked you –

and then it goes on.  Then 202 – and this is an important passage, in our submission – is the Tribunal is putting his conclusion about what Mr H is up to as he sees it:

So, what happened is that you sought to get a job in Australia.  You didn’t get a job?

No, I didn’t.  They – they didn’t ‑ ‑ ‑

No, that’s right, they didn’t give you a job?

No.

And you needed that job in order to migrate, didn’t you?

No.  I – I just wanted to – to go outside of the country and ‑ ‑ ‑

No, Mr H, but if you were to come to Australia to stay you needed to have employment with Qantas or Ansett, didn’t you?

Yes.

So they said no?

Yes, yes, they did.

And then it goes on ‑ ‑ ‑

HIS HONOUR:   At the bottom of that page there is a reference to April, April of what year?

MR GAME:   1997.  But the problem with Mr Hoysted’s theory is that a number of the incidents have already occurred, so that seeking employment does not undercut the claim at all.  Then he said:

I applied them for December 96.

That is at the top of 203.  Then he is trying to explain at the bottom of 203:

It’s not only for employment reasons.

But, what?

Due to my reasons I had – I had to go through a lot of mistreatments that I have to tell you.

MR HOYSTED:   What mistreatments are they?

So he is trying to explain what the problem was:

after – after I got married, just after we got married the people around us they stoned – stoned us.
. . . 
they have put some posters around our wall.  You don’t understand that.

MR HOYSTED:   Why would they do that?

MR H:  They didn’t like any Tamil people come and live – live in your area.  They have a scary feeling that it’s – it’s – that’s the discrimination.

MR HOYSTED:  Because your wife’s mother’s Tamil?

Then he goes on answering.  Then on the next page he says – we are back to – Mr Hoysted’s response:

She doesn’t even speak Tamil.
. . . 
Your marriage – your marriage certificate doesn’t say that she’s Tamil . . . 

So, I mean, even if you did hand over your marriage certificate it’s not going to tell us anything.

So instead of inquiring about these incidents about the stoning, about the neighbours, about the posters, all that has happened is the Tribunal has gone back to his preconception that they do not have any problems because she does not look Tamil and she does not speak Tamil and the marriage certificate does not say that she is Tamil and if they handed over the marriage certificate to the neighbours they would not know that she was Tamil.  We come to 206, again:

She doesn’t even speak Tamil.

That is Mr Hoysted.  Now, if Mr Hoysted was a cross‑examiner in a courtroom and one was an objective observer of Mr Hoysted, one would say that Mr Hoysted was not actually making any progress because he was not asking any questions that were advancing his particular cross‑examination.  He would have been stopped from saying these things a long time before.  Then Mr H:

No.  She – she does understand but she – she doesn’t speak Tamil.  They stoned us twice –

So he tells him, “They stoned us twice”.  So he does not say, “When did they stone you?  How did they stone you?  Who were these people?  Could you see them?  Could you recognise them?”  Those are the sorts of inquiring questions.  What Mr Hoysted says:

your marriage certificate doesn’t say that she’s Tamil.  It doesn’t even have a mother’s name on it.

Then at the bottom of the page he says:

they would get to know that.  It’s – how can explain ‑ ‑ ‑

Well, at the moment, Mr H, you’re not making me believe that.  I mean, ‑ ‑ ‑

MR H:   They started ‑ ‑ ‑

MR HOYSTED:   - - - from my point of view your wife doesn’t speak Tamil.

Well, he has made that point but he has made it maybe 10 or 15 times now and he has not inquired into what, and he has shown no sign of inquiring into what this man’s claim is actually about.  Then he goes on the next page:

MR H:   It’s hard to make you understand situation that I ‑ ‑ ‑

MR HOYSTED:   It may well be hard, Mr  H, - - -

So how can I ‑ ‑ ‑

MR HOYSTED:   - - - and I’ll tell you what, at the moment it’s not just hard, it’s not working.

MR H.  I don’t know if it’s working or not.

MR HOYSTED:   Well, it isn’t.

Well, it is hard to know what the problem was other than a problem that was of Mr Hoysted’s own making:

MR H.   All the mistreatment.  The – my – my parents and my office friends; everybody – everybody teased me and my parents said:  if you’re going to do this you’re no more in my – our family.  I’m ‑ ‑ ‑

MR HOYSTED:   Do you know what it looks like to me, Mr H, at this stage?

Again, it is completely out of context.  It looks completely out of context to what Mr H has been trying to tell him, which is about the things that happened before he applied for employment in Australia.  Then he says, at 207:

Do you know what it looks like to me, Mr H, at this stage?
. . . 
It looks like to me that you – you applied to come to – you sought to come to Australia for reasons of employment, that failed in April 1997 and this – this ‑ ‑ ‑

MR H.  No, it’s not failing that.

All the rest of this is just a fabrication to – to fix that problem.

MR H:   Which ones?  Which ones?

MR HOYSTED:   The whole story about the – being ‑ ‑ ‑

No, no, you don’t understand, no.

Well, that’s how it looks to me.

No, but it is not – they stoned me.

When did they stone you?

There was the incident, after that.  They suspect me for nothing.  No – no reason.

When did they stone you?

Huh?

When did they stone you?

They stoned us – it’s just after our marriage; it’s about two or three months after our marriage, just after our marriage.  Do you think that they won’t get to know that she’s a Tamil – do you still believe that?

I don’t see how they’re going to find out she’s a Tamil.

So he still doesn’t accept the primary point, which was that the neighbours came from Galle and word got around straightaway that he was married to a Tamil.  Then, once again:

MR HOYSTED:   She doesn’t even speak the language.  He father’s Singhalese.

208 point 6.  Then 209:

No classes in Tamil obviously?

I didn’t get you?

MR HOYSTED:   They don’t teach in Tamil, do they?

Yes, they do the subject.

They do?

Then it goes on down the page.  He explains about the mother teaching Tamil.  This is a significant part of the case because it explains how the Galle neighbours came to know that they were Tamils:

MR HOYSTED:   …..you could probably do Tamil down the street here too, if you wanted to.

MR H:   Tamil and English, she teaches Tamil and English.

MR HOYSTED:  I’m sure if you really wanted to do Tamil out here at Sydney Grammar they’d find a teacher for it.  It doesn’t mean a thing.  Well, that’s how it looks to me –

Well, in my submission, that is an entirely offensive thing for the Tribunal member to have said.  Page 210, once again:

Mr H, it looks to me like this is – this is an attempt to fix your problem of not getting a job with Qantas or Ansett?

Well, once again, this preconception has emerged or it is brought up again but nothing has occurred in evidence that would warrant the Tribunal member to come back to this in this way:

No, I applied for that in December, actually.  To tell you the truth I applied for that in December.

Then he tries to explain again and there is a long answer there in the middle, about point 4:

I spent a year, a whole year to get this licence.  You think my money – all the money I – to do the course, then I gain five years experience, I need that – I know that, that I can’t get a chance after coming here.  I – I knew that.  I’m not fool like that.  If I come as a refugee I won’t get a job in the airline.

So what he is saying is, “What’s the point of me coming here if I don’t have employment?  What’s the point of my coming here when that’s not going to advance my employment prospects at all and I will have lost my five years experience in Sri Lanka.”  Then he goes back to explain about the laptop and then:

MR HOYSTED:   In September 1996 what happened to you?

It’s not in September ‑ ‑ ‑

MR HOYSTED:   My word it is.  It’s from the Island . . . 

MR H:   Probably went missing before that.

Then Mr H is trying to explain about how he was investigated.  What he is trying to say he was singled out in respect of the disappearance of the laptop.  He says at 211:

He slapped me twice.

Now, how would the objective bystander think that Mr Hoysted was going to assess this man’s claim that he had been slapped twice in the course of an investigation, having regard to all that had occurred before and having regard to the disbelieving comment at the top of the page, “My word it is”, when he says, “It is not in September”.

Then he goes on the next page, 212:

Mr H, this is not in the least bit convincing.
. . . 
It doesn’t fit, does it?

And he goes on about the laptop computer:

if they thought you’d stolen a laptop computer in September 1996 ‑ ‑ ‑

Yes.

‑ ‑ ‑ my strong suspicion is that you wouldn’t be sitting here.

And then Mr H says:

You’re thinking that I’m saying lies?  Definitely thinking that I’m saying lies?

Yes, I – you’re absolutely right, Mr H, I do think that.  Perhaps I’ll hear from your wife but you’re absolutely right; that’s precisely what I’m thinking, Mr H.

MR H:   You think that?

Yes.

MR H:   Do you believe that I’m lying?

Yes, that’s precisely what I think at the moment, Mr H.

How can I make – believe me?

I don’t know yet.  Perhaps I’ll hear from your wife –

Then Mr Hoysted said:

Well, as far as I can see at the moment all they – all they had reason to suspect you for is for having a couple of Tamil people stay the night – well, stay four nights.

Again, it is a dramatic understatement of what is being put to –

MR H:   I had to make an entry, I went to the police station at the first incident when they told us.  When I go to the police station do you know what he said to me, the police officer?

So Mr H is about to tell him something about what he was told.  Mr Hoysted’s response:

No, I don’t, I wasn’t there.

That is a completely sarcastic response, but what is even more important about it is he is not even interested in hearing the answer to the question:

He noted down the thing and he said ‑ ‑ ‑

MR HOYSTED:   This is back in March 1996?

Yes, somewhere after – just a couple of ‑ ‑ ‑

He is actually not listening, in our submission.  Then that is the end of Mr H and then Mrs G gets into the witness box at page 214.

HIS HONOUR:   This is still on 21 September 1999?

MR GAME:   Yes, your Honour.

MR HOYSTED:   And you too are well travelled.  You are well travelled this tells me?

I’ve been to three countries.

Been to?

Three countries.

Been to Singapore, Hong Kong?  India –

Well, it is his idea that they are international jauntors, I think is – then:

Why would the police be after you?

Because we had to at one stage assist the LTTE.

Then she explains how she is phoned on 215:

MR HOYSTED:   So what else did you do?
. . . 
MR HOYSTED:   So this all started in about April 1997?

Then down the bottom of the page:

I had to provide them with the information they wanted.

What information was that?

About the cargo and consignment dates and the officers; the various officers wanted, like, were going to collect the cargo.

And what else did you do for the LTTE?

Then on the next page he says – this is 217:

You don’t speak any Tamil, do you?

I sort of understand a little bit . . . 

Can you speak it at all?

Pardon?

Can you speak it all?

That is 217.  218:

you don’t speak it?

Then 219:

My husband had to bribe them with all that they wanted.  They wanted some charts and some – like vital information about the flights and things so he had to do all that for them and after that they left and they had – they had not done anything to my mother.  They had sent her home.

Then the next comment by Mr Hoysted is a completely irrelevant comment that has nothing to do with the answer that has been given:

If you were walking along the street can you tell whether someone’s Tamil or Singhalese just by looking at them?

MRS G:   Yes.  Yes, you could recognise.  In your own country you could recognise.

MR HOYSTED:   What about yourself?

People recognise me, they think I’m Tamil by the looks of me because I’ve – I’ve got my mother’s ‑ ‑ ‑

MR HOYSTED:   You don’t speak any Tamil?

Well, I have not been counting but this would have be the twentieth time he said it:

I don’t but my first name is Tamil, so.

How are the police going to know anything about what you two have done?

They will – like, my husband had to go through – like there were a few incidents in his work place and they – they kind of knew about his – like me and our connection with the Tamil community and ‑ ‑ ‑

What connection is that?  The fact that your mother is a Tamil?

Yes, which means, you know, we are connected to them, we have relatives and we have involvement – I mean with the Tamil community.

MR HOYSTED:   What involvement do you have with the Tamil community?  You can’t even speak Tamil?

So it is hardly as if the objective bystander would think that there was any chance that Mrs G would get a fair hearing or that her account might be accepted having regard to these interjections.  Then we come back to the Qantas application back in December 1996 at the bottom of 221.  Then Mr Hoysted on the next page says:

Quite clearly your husband wasn’t a suspect for very long.

What do you mean?

Well, I’m going to read your something.

Then he reads out the reference, but the problem about the reference is the reference came from the employer and not from the police and it was the police who were investigating him.  Then on 223, Mr Hoysted says:

I must say your evidence is not terribly convincing, Mrs G, and at the moment all I can see is that the – that the police know that your mother was Tamil – is that what – I don’t see any basis for the police suspecting you of anything else.  Indeed, if they did suspect you of anything else why wouldn’t they have arrested you?
. . . 
MR HOYSTED:   Well, I’ve got to say that there isn’t any evidence that the – that the Sri Lankan police are all that fussy about evidence.  If they think somebody’s assisting the LTTE they’ll arrest them.

Well, they did say that their house had been searched and they did say that they had been questioned over two incidents, that Mr H had been singled out and questioned over two incidents, and as a suspect that he had been slapped and that he had been told something which the Tribunal did not care to hear what it was.  Mr Hoysted here had said:

I must say your evidence is not terribly convincing –

but what evidence?  She has only been in the witness box for some nine pages and she has hardly given any account about anything and he has not been inquiring to find out whether or not the accounts are objectively true in the way a questioner would check things against other things, the way an expert questioner, or even a lay questioner, would go about finding out whether or not the account was true.  He has not given her chance.

Then we come onto, at 224, about the husband being “given a camera to photograph” and their problem is that they had been picked up by the LTTE to assist the LTTE and this puts them in danger of a considerable kind with the authorities, and that is at the heart of their case.  Then 225 – Mrs G gives a long explanation on page 225 and then Mr Hoysted says:

That’s precisely what I think, Mrs G –

that is in relation to what was his theory:

I’m absolutely unconvinced at this stage.

Then:

I can understand at the moment the police know – the police could know is that your mother is Tamil, that you’ve had some Tamils come and stay.  Now, I don’t know that that’s a basis for me to conclude that you face any risk should you return to Sri Lanka . . . 

Sir, we got to know that the police was looking for us.

Well, I don’t see any reason why they would –

Then on 226, Mr H comes back.  Sorry, I have been calling them by their names throughout for the transcription.  I am sorry about this, but could Mr be referred to as H and Mrs be referred to as G.  I am sorry that have been doing that, but if ‑ ‑ ‑

HIS HONOUR:   Yes, that would be consistent with the order that has been made.  These transcripts end up on the Internet, you know.

MR GAME:   Yes, I am sorry, your Honour.  That is true.  Yes, I have actually named some other persons too in the course of my submissions and I am just wondering whether or not that was wise.

HIS HONOUR:   Perhaps what you should do is at the end of this hearing talk to the Court Reporting Service and see if you can go through with them and anonymise the transcript.

MR GAME:   Yes.  Could we have leave to anonymise the names of the other individuals that are referred to in the transcript?

HIS HONOUR:   Yes.  What do you say about that, Mr Gageler?

MR GAGELER:   I have no objection, your Honour.

HIS HONOUR:   But this will have to be your responsibility.

MR GAME:   Yes, your Honour.

HIS HONOUR:   I cannot just throw it on the Court Reporting Service now, Mr Game.

MR GAME:   No, certainly.  I apologise for that.  If we could have leave to anonymise the people identified and we will take the responsibility of doing that with the Court Reporting and to the extent necessary we will liaise with Mr Gageler and his party that he represents if there is any problems with that.

Then both Mr H and Mrs G back in the room then, 226:

MR HOYSTED:   No, Mr H, I don’t.  I’m afraid I found it most unconvincing.

Then at 227:

Mr H, however you weigh this up if somebody wanted to harm you why haven’t they harmed you already?

MR H:   We – we escaped on time, I think.  We have escaped…..in time.
. . . 
MR H:   You don’t trust us.
. . . 
You don’t think that we are saying true, you think we are – all these things lies?

At this stage, that’s – that’s exactly what I think but I’ll go away and consider it all, Mr H, and listen to the tape again –

After that a letter was written to the principal member by Mrs G and it is a letter of complaint about the way in which the case was dealt with and ‑ ‑ ‑

HIS HONOUR:   Yes, I have that letter.  That letter is at page 229 of exhibit RK1.

MR GAME:   I will not read through it, your Honour.  I will take it your Honour has had an opportunity, but it is a matter that will need to be read to see what the context is for the further hearing of the matter because Mrs G, who wrote the letter, made allegations about the way in which the case had been heard.

HIS HONOUR:   No, the letter is signed by both of them.

MR GAME:   Sorry, the letter is signed by both of them but I think it is fairly clear that it was written by Mrs G because it says:

During our hearing, I and my husband were not given a chance to explain –

and then it says:

not give an opportunity to my husband by being rude –

So, I am sorry, your Honour, yes, it was written by both of them but the speaker appears to Mrs G.

Then on 233 the matter is listed again.  This time Mr H is not called Mr H.  He is called another name which appears at 233.

HIS HONOUR:   This is the further hearing on 19 October 1999?

MR GAME:   Yes, it is at page 233.

HIS HONOUR:   That is at page 233 of exhibit RK1.

MR GAME:   And he is not called Mr H any more.  He is called another name which appears in the second line and for some reason the Tribunal has dropped calling him the way he is actually called, calling him what would be to an English-speaking person a much more accessible name.  Then he says:

I understand that you – that you felt that there was information that you wanted to give me which I hadn’t listened to or something.

Well, that display of not knowing what the matter is suggests, in my submission, a certain antagonism on the part of the Tribunal member to the matter being relisted:

I have asked all the questions I wanted to ask –

and then this other name appears.

HIS HONOUR:   Do we know anything more than that the hearing took place on 21 September 1999, a letter of complaint about the hearing was written on 30 September 1999, and it was addressed to the principal member of the Tribunal, and then on 19 October there was a further hearing before Mr Hoysted?

MR GAME:   We do not know, your Honour, but could I ‑ ‑ ‑

HIS HONOUR:   It may not matter but we do not know anything more about how that came about?

MR GAME:   We do not know, your Honour, but one thing we do know that I neglected to mention is that the hearing – if you go back to page 229, that the hearing had been listed on 13 September 1999 at 1.30 and they had been told on that day that the case had been cancelled due to the absence of the member.  So when they turned up on 21 September, that was, in effect, the second occasion on which they had expected their hearing to be heard.

Coming back to 233:

I have asked all the questions I wanted to ask –

I will call him “Mr X” that he calls him now –

Mr X.  I’m here to listen to you?

Then Mr H then mentions the problems with the drinking water.  He says:

Sorry, you poisoned the drinking water?

Well, he already knew that that was not the case.  He had read about and he had heard about it.  He had heard it, including at page 221.  Then he said:

Why do the police suspect you of poisoning the drinking water?
. . . 
Because your wife’s a Tamil?

Then he goes on at page 234 about the police investigating the drinking water and burning his thigh at 234.  Then Mr Hoysted:

It’s a bit hard to believe that somebody – that an organisation that would say this about you thought that you were poisoning their drinking water.

Then the name of his employer, who wrote the character reference, is referred to.  He says:

Now, that’s dated September 1997.  That doesn’t sound like somebody who thought that you were poisoning the drinking water.

Then he tries to explain that, in fact, it was the police that he was suspecting him; it was not his own personal boss at A.  I think the anonymity will have to extend to employers as well, so I will have to ask for leave to include that.  Then Mr Hoysted says:

Go on, Mr X?
. . . 
Go on, Mr X.
. . . 
Is there anything else you want to tell me, Mr X?

This is at 235.  He gets to the end.  Then at 236:

I understand what you’re saying, Mr X.  I don’t find it the least bit convincing.

Then further down the page:

Tell me, Mr X, why would the Liberation Tigers of Tamil Elam write to you and give you a letter –

et cetera:

Are they idiots?
. . . 
Well, are they really because they’re a longstanding successful terrorist organisation and you don’t get to be a longstanding successful terrorist organisation by sending people letters –

and in that he is reflecting what the primary decision‑maker did.  Then he said:

That’s just laughable, Mr X.
. . . 
Absolutely laughable.

HIS HONOUR:   Where are the reasons of the primary decision‑maker?

MR GAME:   They are at page 135 and you see at page 137 ‑ ‑ ‑

HIS HONOUR:   Excuse me, we may be working from different documents.  I am working from exhibit RK1, which has a total of 241 pages in it.

MR GAME:   Yes.  Yes, but at 135 ‑ ‑ ‑

HIS HONOUR:   Of - - -?

MR GAME:   Of this affidavit.

HIS HONOUR:   Of this exhibit?

MR GAME:   Of this exhibit, yes.  That is the primary decision‑maker’s decision.

HIS HONOUR:   I think it starts at 133.

MR GAME:   I am sorry, your Honour.  But then at 137 your Honour will see he is reflecting exactly the same as appears at paragraph 3.2.3 in the primary decision‑maker’s decision.

HIS HONOUR:   The primary decision‑maker says at page 135:

I consider that elements of the applicant’s account of his claims raise serious concerns about the applicant’s credibility.

MR GAME:   Yes.

HIS HONOUR:   So the Tribunal has come to this matter having read a fairly lengthy explanation by the primary decision‑maker as to why he thought there were doubts about the credibility of your client.

MR GAME:   Yes.  Just at 137, at the top of the page, is the particular bit about the letter.  It is addressed at 3.2.3 in the primary decision‑maker’s reasons.

HIS HONOUR:   I have not compared the two documents, Mr Game, but is it the case that the substance of the reasons that were ultimately given by the Tribunal for affirming the decision of the primary decision‑maker was the same as the reasons given by the primary decision‑maker?

MR GAME:   I think in substance it would be fair to say that is correct.  So then we come back to 237, but he keeps saying he does not find things convincing or laughable, but there is nothing of substance in what the person is saying that would cause one to say that about that.  It would be some of form of questioning that would expose the problem, but this man is simply giving an explanation and then there is some interjection and then he is told it is not believable.  It is not as though there is that inquiry for search for truth that one would expect or ‑ ‑ ‑

HIS HONOUR:   Just remind me what went on before the decision of the primary decision‑maker.  There was a written application for a protection visa.  Was there any meeting of any kind between the applicants and the primary decision‑maker?

MR GAME:   I will just have to ask.  No, your Honour.

HIS HONOUR:   So the primary decision‑maker made the decision on written material provided by the applicants.

MR GAME:   Yes, and which you have in the affidavit material.

HIS HONOUR:   Thank you.

MR GAME:   Then he says, at 237:

Why didn’t you take it to the police?

This one?  How can I take it to the police.  Police did terrible things for me just for nothing, for no reason.

Well, Mr X, you know, is there anything else you want to tell me?

There’s other things.

What other things, Mr X?  I’m here because you wanted to tell me more things, Mr X.  I’m listening?

Then he goes on.  He gives a further explanation.  Then:

MR HOYSTED:   It’s nonsense, Mr X, isn’t it?
. . . 
I’m here to listen to you, Mr X, but I’m telling you quite plainly, Mr X, that I’m unconvinced by your evidence at this point in time.

Then he goes back – he says, “I’ll get killed if I go back”.

This letter, I think, is manufactured because I don’t accept that the Liberation Tigers –

et cetera.  It is about the letter.  He says it is a “fabrication, Mr X”.  Then he says:

You see, there’s no basis whatsoever from my point of view on which I could conclude that you will be suspected of being an LTTE supporter.  You’re Singhalese.  There is no Singhalese support for the LTTE.  Your wife doesn’t even speak Tamil.

Now, at this late stage ‑ ‑ ‑

HIS HONOUR:   Just before we go any further, the letter or letters ‑ ‑ ‑

MR GAME:   That is a reference – sorry, that is the letter from the LTTE.

HIS HONOUR:   Yes.  That was included amongst the papers put before the primary decision‑maker.

MR GAME:   I believe so, yes.

HIS HONOUR:   Yes.

MR GAME:   And, once again, we are back to:

Your wife doesn’t even speak Tamil.

Yes, she does.  No, Mr Hoysted, you don’t understand that I have to ‑ ‑ ‑

. . . There just isn’t any good reason why I would come to a conclusion that the Sri Lankan authorities suspect you of being an LTTE, as it were.

HIS HONOUR:   At what page of exhibit RK1 do I find that letter?

MR GAME:   I will just get that.  Page 54 and 55.

HIS HONOUR:   Thank you.

MR GAME:   But, your Honour, if you wanted to question a person to show that the letter was a fabrication, it would not be terribly difficult to compose some questions addressed to that question, such as, “How did you come into the possession of this letter?  When did you come into possession of this letter?  Who gave you this letter?”, basic questions that any person with a rudimentary knowledge of cross‑examination would ask.  There is no such question throughout this transcript.  There is just simply disbelief.

There has been no questioning to speak of in this whole exercise.  There has just been constant interruptions with the member’s own preconceived ideas about which way the case should be decided, and has been decided, in our submission.

HIS HONOUR:   Is it right to say that part of what happened was in his original application your client included amongst the material that went to the primary decision‑maker, the delegate, the letters at pages 54 and 55 of exhibit RK1 and the primary decision‑maker took the view that those letters appeared to be fabrications ‑ ‑ ‑

MR GAME:   That is right.

HIS HONOUR:   ‑ ‑ ‑ and by the time it got to the Tribunal the Tribunal was confronting your client with the proposition that those two letters were fabrications?

MR GAME:   Yes, that is true, but he is not asking questions to elicit whether or not they are true.  He is just putting it to him that they are fabrications and my client is saying, “No, they’re real.”  It is not an exchange that is meaningful in any sense.  It is not going anywhere.  So then he explained at 239, the bottom of the page:

So whenever I go back they have broken into my house . . . 

Mr X, I don’t believe these letters are real.

Then Mr H goes on, explaining further:

I think it’s –

and I call him “M” –

M’s plans.  He’s the one who organised everything . . . he’s the one who’s ruined everything.

Once again, no inquiry about how Mr M fits into the picture:

Is there anything else you want to say, Mr X.

MR X:   If you don’t believe us it’s nothing else to say.  The only thing that ‑ ‑ ‑

You’re absolutely right, Mr X, I don’t believe you.

Then he goes on:

The people around us they wanted to chase us away from that place.  In 96 they stoned us after a couple of months later – after our marriage they stone us then that was ‑ ‑ ‑

MR HOYSTED:   Because they somehow guessed that your wife is part Tamil?

So he has chosen to ignore a basic fact which he has been told numerous times, that is through the family connection through Galle that they come to know that he is Tamil – that she does look Tamil, but that it is not because she is Tamil that they know that she is Tamil, but because of the knowledge of the family connection and that the mother had taught Tamil at the local school in Galle and they knew through that fact at least.

HIS HONOUR:   It may not matter but is that word “Galle” consistently misspelt in the transcript?

MR GAME:   G-A-U-L is how it is spelt.

HIS HONOUR:   Is it?  I thought I saw it spelt quite differently somewhere else.

MR GAME:   I saw it once – anyway, it should be G‑A‑U‑L – no, it is G‑A‑L‑L‑E, I am sorry.  It should be G‑A‑L‑L‑E.

HIS HONOUR:   G‑A‑L‑L‑E.

MR GAME:   So he says:

Because they somehow guessed that your wife is part Tamil?

They know that.

MR HOYSTED:   They call tell just by looking at her?

We are back to the old – we are back to Venice, it is just the same old record.  Then the applicant says:

Looking at – they can tell and they know that.  It’s – it’s obvious; they get to know that.  I can’t ‑ ‑ ‑

Mr X, I think that’s complete nonsense?

So he thinks it is “complete nonsense” that the other people know that they were Tamil and yet on what basis could there possibly be for thinking that that was nonsense when there was a very simple explanation, about which there was really no basis for any challenge, which was that he came from Galle and that they knew through the mother teaching and so forth.  So he thinks that a very basic fact in the case is nonsense, a very basic fact, a fact about which there could really be no dispute, in our submission:

MR HOYSTED:  I can look at your wife, I know Singhalese people, I know Tamil people.  If anything she looks –

he says “Tamil” -

looks Singhalese.

So, once again, he thinks she does not look Tamil.  He thinks she does not speak Tamil, she does not look Tamil.  Then the applicant says:

But she looks like Tamil, doesn’t she?

MR HOYSTED:   No.

So Mr Hoysted is now giving evidence about his views about how people look.  Then the applicant is still struggling:

You can’t see.  But it’s not the reason that I’m saying – they get to know that.  It’s – it’s not a – they know that, Mr Hoysted.  They are so inquisitive.  Everybody’s in my country it’s – they are so inquisitive that you have a Tamil relative –

Well, to take a simple example from our culture, if you went to a Protestant or Catholic school in the 50s or 60s, you would know if a boy was Catholic or Protestant without being told what the case was.  If you went to a Protestant school and there was a Catholic boy, you would know that the boy was Catholic.  Nobody would come up and tell you that.  It was just one of those things that people knew in a society that had strong and separate religious positions.  Of course, the neighbours would know that she was a Tamil if they came from Galle.  Now, he says:

if they know she’s part Tamil…..in your evidence your situation is not unusual.

And he makes big play of that in his reasons ultimately.  Then the applicant says:

My case is a different thing.
. . . 
Than by – stoning us…..

Mr X, at this point in time I don’t accept that you had a single difficulty.

Well, I’m sorry, sir, I have.

Because they don’t fit.  They don’t fit with what we know about Sri Lanka, they don’t fit with your circumstance and I’ve heard you giving the evidence and I find you to be a most unconvincing witness.

Well, Mr Hoysted, I had to go through a lot ‑ ‑ ‑

Mr X, about all I believe from you is your name and address?

Well, that really is, in our submission, a fairly outrageous indictment on the Tribunal member to either say or think such a thing.  He ends up by saying:

It’s an improbable story and you’ve told it very badly.

That is at bottom of 241 – and I would make the same comment about that.  That is the end of it.  I have taken your Honour through the evidence.  Your Honour is familiar with the law.  The question ‑ ‑ ‑

HIS HONOUR:   There is one thing I should ask you to specify is this, Mr Game:  what is the nature of the bias that you say would be apprehended?  Is it bias in the form of prejudgment, bias in the form of interest, what kind of it?

MR GAME:   Prejudgment.

HIS HONOUR:   So this is a prejudgment case?

MR GAME:   Yes.  If I can assist your Honour further, then I more than happy to do so, but I think that I have – I am sorry, I am reminded there are two things.  Just at the bottom of 234 and 235.  When it says they burn his “tie”, it should say they burnt his “thigh”, so it is not his “tie”.

HIS HONOUR:   I was wondering about that.  So I will note that where the transcript of the hearing before the Tribunal purports to record that cigarette burns were made on the applicant’s “tie”, spelt T‑I‑E, in fact, the applicant was endeavouring to communicate the cigarette burns were made on the upper part of leg, spelt T‑H‑I‑G‑H.

MR GAME:   Thank you, your Honour.  I think there is one more correction that I have to make.  Yes, you asked me a question about whether or not the decision reflected the primary decision‑maker’s decision and my junior reminds me or tells me that the primary decision‑maker’s decision did not include what could be described as the “employment theory” which we have put as being an important part of the preconceptions which the Tribunal member brought to his decision.  Those are our submissions.

HIS HONOUR:   There is one other question I wanted to ask you, Mr Game.  What, if any, significance attaches to the circumstance that we now have a finding by the Federal Court that there was not here a case of actual bias?  Does that have any significance when we come to look at the question whether there is a reasonable apprehension of bias?

MR GAME:   No, your Honour, although this would have to be the most acute – point out the most acute difficulty presented by the bifurcation in Part 8 of the Migration Act, but if this Court thought that apprehended bias was made out, then it would be unnecessary for it to go further and address itself to the question whether or not actual bias was made out, so that there would be no problem with estoppel.

HIS HONOUR:   There is no question before us as to whether actual bias is made out, is there?

MR GAME:   That is correct, no, but if your Honour thought that – shall I put it this way.  If you thought that satisfaction of conditions (a), (b) and (c) made out apprehended bias, that (a), (b), (c), (d) and (e) made out actual bias, and your Honour thought that all five were present, it would still be unnecessary for your Honour to make any findings about (d) and (e), therefore, there would be no ‑ ‑ ‑

HIS HONOUR:   I was only wondering whether, there having been a curial decision that the Tribunal member was not biased, that is a matter is in any way to be taken into account in later considering whether there was a reasonable apprehension of bias.

MR GAME:   We would submit no, your Honour, and it is a curiosity that, to put it bluntly, the hurdle is substantially lower for us in these proceedings than it was in those proceedings.

HIS HONOUR:   There is another matter on which you perhaps might want to make submissions, and it is this - it is a little related to what I asked you earlier about the actual circumstances of what was going on before the Tribunal – is the conduct of a Tribunal member in circumstances such as this to be judged by the same standards as the conduct of a judge or different standards?

MR GAME:   Well, this is one of the questions upon which we – this is the particular question about which we raised with your Honour when your Honour indicated that it might be possible to proceed to finality in the way indicated ‑ ‑ ‑

HIS HONOUR:   You mean this is the matter you want to address in written submissions?

MR GAME:   This is the particular matter.  We see the test is the same and that the cases say that the test is the same, but the application of it may have different consequences.  One relevant distinction that we would see in our favour is that – and our opponents put submissions to the contrary, but one aspect that we would see in our favour is that whereas judges – the ordinary bystander might think that judges are trained to discard the irrelevant, to put aside some question that might suggest a preconception is brought to a particular process.  The ordinary bystander might have a very different view about what a Tribunal member who is not so legally trained is doing and, in that sense, we would see the way in which this Tribunal member has conducted this case as having much more serious ramifications in terms of the question of apprehended bias than were it a judicial officer.

HIS HONOUR:   One obvious difference between a judge and a Tribunal member is that a judge has what is sometimes generously described as “the assistance of counsel”, so that a judge can, as it were, sit back and listen to a witness being cross‑examined in an adversarial context and that is the context in which judges are repeatedly reminded of the need to keep themselves out of the adversarial contest.  A possible point of view is that a Tribunal member does not enjoy that advantage.

MR GAME:   No, that is true, your Honour, but we would say that that cuts both ways because the Tribunal member has to ask the questions but at the same time the Tribunal member, given that necessary role, has to be at pains to maintain a level and an appearance of impartiality throughout the proceedings.

HIS HONOUR:   That could sometimes be difficult where the rules of natural justice operate to require the Tribunal member to confront an applicant with difficulties that the Tribunal member is having with the applicant’s story and giving the applicant an opportunity to deal with those difficulties.

MR GAME:   Yes, we accept that that is so, your Honour, but our submission in that regard in respect of this particular case is that this was not a case of the Tribunal, as it were, putting particular difficulties to the person.  This was a case of the Tribunal trumpeting his disbelief throughout of what was being put to him and putting his own theories.

HIS HONOUR:   You mean too much confrontation and not enough opportunity to deal with the problem?

MR GAME:   That is right.  That is exactly right, your Honour, and I made this point several times.  If one imagined that one was sitting on this case and trying to inquire as to the truth of it, one would ask questions to expose the story or to see whether the story was true or false.  One would ask questions about, “Who did the stoning?  When was the stoning?  How were you affected?  What injuries did you suffer?  What, did you go to the doctor?”  But not any topic throughout this whole transcript does one find one inquiring procedure actually pursued by the Tribunal member.

HIS HONOUR:   What seems, on a superficial reading, to have most excited the suspicion of the original decision‑maker and then the Tribunal is these two letters that are at pages 54 and 55 of exhibit RK1.  If the decision‑maker or the Tribunal member came to an early tentative view that they were fabrications, that would create a considerable difficulty for your client.

MR GAME:   Yes, but he did not mention them at all on the first occasion and on the second occasion he did not ask any questions directed towards inquiring as to the circumstances in which they came into Mr H’s possession.

HIS HONOUR:   What is your response to the scepticism that was expressed about those letters by the decision‑maker and by the Tribunal?

MR GAME:   Well, the decision‑maker had not heard obviously from the applicant, but the Tribunal himself did not seek or hear any explanation in relation to those letters.  I am really giving your Honour the answer I gave in the question before, which is that there is no inquiry which would advance this scepticism one way or the other.

HIS HONOUR:   The Tribunal member appears to have taken the view that it is unimaginable that terrorists would write letters of that kind and leave them in the possession of your client.  What is your response to that?

MR GAME:   Well, you might think that that was a possibility and you might want to inquire about it, but to inquire about it, you would ask questions about his knowledge of what they did on other occasions or whether or not this is something you had heard about from having happened, was this unique to him, was it their practice to speak in English or write in English – he had said something about that, that they had spoken to him, or at least one of them had spoken to him in English – had they said anything to him about what to do with the letters, who had given him the letters, when had they been given to him and how, had they been giving it to him by covert means, what was the identity of the person who had given him the letters, what had the person said when they had given him the letters.  I am thinking of these questions on my feet, your Honour, but it is not terribly hard to think of a series of questions that might direct ‑ ‑ ‑

HIS HONOUR:   This is a problem your client will have to address if the matter goes back for a further hearing.

MR GAME:   Of course.

HIS HONOUR:   There is no evidence anywhere, is there, in which your client says, “If I had been given a proper opportunity to deal with this issue, this is what I would have said”?

MR GAME:   Well, no, but we know that he says that they were not fabrications and he insisted on that to the Tribunal, so we know that much.  Can I also mention something else, your Honour, which is – again, I am saying something that is obviously well principled and it is well‑known to your Honour, but if you recall the Flowers Case, which was Webb and Hay, the Court in the context of a criminal appeal was at pains to point out that no question of no miscarriage of justice could arise if there was an apprehension of bias and similar principles would apply in respect of judicial review, in our submission, that if your Honour is satisfied that a case of apprehended bias is established, then the inquiry goes no further in respect of whether or not the decision was really correct or whether or not the Tribunal really did have a foundation for suspicion about the letters and so forth.  The case is made out without us taking it any further from that, but, again, I am saying to your Honour things that your Honour is more than familiar with.  If that is all, then those are the submissions.

HIS HONOUR:   Thank you, Mr Game.  Yes, Mr Gageler.

MR GAGELER:   Can I take your Honour, first, to some of the documentary material that was before the Tribunal.  Your Honour will find at page 13 of the exhibit to the first affidavit the beginning of an application form which was the joint ‑ ‑ ‑

HIS HONOUR:   That is exhibit RK1?

MR GAGELER:   That is correct, your Honour.  The joint application form for both applicants together with the supporting documentation submitted by the applicants.  The application goes from page 13 through to page 130.  At page 27 your Honour will see at about point 3 date of arrival in Australia 8 October 1997 and your Honour will see from page 48 at about point 4 that the date of the application was the 28th day of the same month.

At page 27, at the bottom of the page, in answer to the question, “Did you ever travel outside your home country before your current journey to Australia?”, there are a number of references, including two previous trips to Australia, the most recent one being in February 1997.  That information needs to be considered in conjunction with the letters that your Honour will find at pages 58 and 59, letters respectively from Ansett and Qantas dated April 1997, obviously rejecting an application made by the applicant H for employment with them.

Then at page 49 as an annexure to the original application your Honour will see a statement by the applicant H which goes from page 49 to 53 and within that statement your Honour will find all of the elements of the story, such as it was, that the applicant sought to present and sought to elaborate ultimately orally before the Tribunal.  At page 50 at about point 4 there is a reference to the laptop computer incident.  At about point 7 there is a reference to the drinking water being poisoned.  Your Honour will note that the reference there says that the drinking water “was poisoned and as a result of this I was taken for questioning by the company security and investigations department which was followed by a police inquiry”.  So it was not just the police.  He was saying that the company was involved as well.

Those assertions, however, at least on the face of the documentation, appear to fit somewhat uncomfortably with the letter from the employer that your Honour will find at pages 96 to 97, a letter dated 25 September 1997, which at page 97 about point 7 says that:

Mr H bears an Excellent moral character and is disciplined and honest and dedicated.  He could be considered a “gain” to any organisation who wishes to employ him.

At page 51 in the same statement your Honour will find a reference to the harbouring for several days of the LTTE and the reference to the mother‑in‑law.  That is introduced by the word “recently”.  There is a reference in the subsequent paragraph to having received the two letters.  Those are the two letters that your Honour has already been taken to at pages 54 to 55, which one might well think on their face have an element of implausibility about them being on the letterhead of a terrorist organisation; the one at page 54 giving the names of particular operatives and a date and time when they would be at a particular place.  The second one heartily thanking Mr H for his assistance.

Your Honour will find, at page 103, the corresponding statement of the female applicant, G, which, in the first two paragraphs, deals with her mother’s Tamil ethnicity and says, in the last sentence of the second paragraph:

Even in my school the friends and teachers who knew about my mother used to say things which I did not like.

There is a focus on the mother’s ethnicity, not on her own ethnicity in that statement.

At page 133 through to 145, one then finds the record of the original decision and your Honour can see that, at page 134 point 2, the evidence before the original decision-maker was entirely documentary.  Without going through the document in detail, your Honour will see peppered throughout it concerns about the credibility of the story being told:  for example, 135 point 6, 137 point 4, 141 point 3, 142 point 2 and 4, and 143 point 1.  The decision-maker looked at the documentary material and just did not believe the story.  That was readily apparent to the applicants because the applicants were provided with a copy of the original decision under cover of the letter that your Honour will see at page 131 to 132.

There was then, at page 147, the application that was made to the Tribunal.  That application was supported by further statements from the applicant, H, and the applicant, G.  Those further statements, which begin at page 150, took the original document submitted by each of them and added bits which are both italicised and sidelined, bits which respond to the concerns raised by the Tribunal.  For example, at the top of page 151, in the male applicant, H’s, statement - - -

HIS HONOUR:   Concerns raised by the Tribunal or by the decision‑maker?

MR GAGELER:   I am sorry, your Honour, by the decision‑maker.  Your Honour is absolutely right.  There is a statement:

Though the decision‑maker assumes that theses happenings are implausible –

a little further down:

Though I was being accused of exaggeration for my own circumstances –

significantly, further down, 151, point 7:

Though the decision‑maker indicates that my case is devoid of dates and given scant references –

similar statements at page 152 and, indeed, throughout the entire documents, and then there is then a similar document at page 157 through to 160, and then a further joint statement at pages 161 to 163 where both applicants demonstrate very clearly that they understood that their story had simply not been believed.  For example, 161, point 3:

The decision‑maker states that it is implausible that all this took place –

and then, 162, point 4:

The decision‑maker states that the letters from LTTE are fabrications designed to give credence to our claims –

The applicants were very clear about what had happened with the primary decision‑maker.

The next event is then at page 167 where your Honour will see a letter from the Tribunal to the applicants inviting them to the hearing.  What that letter says, at about point 4 of the page, is:

The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone.  You are now invited to come to a hearing of the Tribunal to give oral evidence –

et cetera.

HIS HONOUR:   What is the statutory provision pursuant to which that hearing was conducted?

MR GAGELER:   That is section 425 of the Migration Act which is reproduced conveniently in paragraph 9 of the Mr Kessels’ first affidavit.  The letter reflects the terms of section 425 which, in subsection (1) says:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence - - -

HIS HONOUR:   We do not have a print of the Migration Act here.

MR GAGELER:   Your Honour will find it in Mr Kessels’ affidavit sufficiently, paragraph 9.  In subsection (1) it provides:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

But in subsection (2)(a), it provides:

Subsection (1) does not apply if:

(a)  the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it.

HIS HONOUR:   So, the scheme of the legislation is the applicant, in effect, puts a written argument before the Tribunal as to why the primary decision‑maker’s decision should be overruled.  If the Tribunal accepts that without more, that is the end of the matter.

MR GAGELER:   Yes.

HIS HONOUR:   And the decision‑maker’s decision is overruled and the Tribunal’s decision is substituted for it.  But unless the Tribunal is prepared to find in favour of the applicant on the papers, as it were, the Tribunal is obliged to invite the applicant to appear to give evidence and present arguments?

MR GAGELER:   That is the scheme, yes.  So, one does not start with a completely clean slate.  It is in that context one then must read the transcript and, your Honour, I do not propose to go back through the detail of this transcript but can I say a couple of things about it?  On the first day there are the perhaps unfortunate references at page 171 to the “cricket commentator” and pages 180 to 181 to the “test match” in the context of two people sitting across the table from one another and at the beginning of the interview that can be seen as no more than a somewhat clumsy attempt by the Tribunal to put the applicants at ease.

One then gets into the questioning which continues for some pages during which the Tribunal displays incredulity, some frustration and, indeed, some irritation at the evidence as it emerges.  But up to page 207, the transcript fairly read, displays nothing more that such reactions to the evidence.  At page 207 then one gets the first expression of opinion by the Tribunal but it is couched in terms of how it looks to the Tribunal “at this stage”. 

When that is then clearly enough stated by the Tribunal at page 207, one gets the reaction by Mr H, at the top of page 208, which involves raising the claim that he had been stoned.  Now, far from that claim not being pursued, there are then three questions by the Tribunal in the same terms, “When did they stone you?”, to which he never gets an answer.

At page 210 there is then the introduction of the laptop computer incident and the Tribunal fairly and properly puts to Mr H the difficulty of reconciling that claim with the document that Mr H himself had put before the primary decision‑maker which is the reference from his employer.  Then at the bottom of page 212 to the top of page 213, again, the Tribunal is expressing the views which had been formed on the basis of the evidence that had been presented but still cast in terms of how it looked to the Tribunal “at the moment”, and it is at the top of page 213.

At the end of the first day the Tribunal, I accept, is expressing very strong views as to the evidence that had been presented but still presented in terms of “At this stage this is how it looks” and the last couple of lines of the transcript on that day:

I’ll go away –

says the Tribunal, and look at all this carefully and –

we’ll see what conclusion I come to.

That is the end of the first day.  One must remember that the second tranche of the hearing was convened at the request of the applicants and at page 233, right at the beginning, the Tribunal was asking the applicants, “Well, what is it more that you want to tell me?”  Throughout the proceedings on that day what emerges is nothing more than a going over of the same material with, really, no further detail emerging.  Admittedly, then at page 241 and at page 244 one has extremely strong statements by the Tribunal of disbelief of the evidence and the statement of what appeared at that stage to be a fairly concluded view, but that is at the conclusion of the evidence.  That is a point that was made by Justice Marshall in particular in the Full Court of the Federal Court.

So, your Honour, fairly read, and in the context of the preceding documentary evidence, what the transcript reveals, in my submission, is a very strong reaction on the part of the Tribunal to the evidence, a reaction that was characterised by a degree of impatience, a degree of incredulity, a degree of irritation and, towards the end, in particular, expressions of open

disbelief but what the transcript does not reveal, in my submission, is prejudgment on the part of the Tribunal or an unwillingness to listen to the evidence and evaluate it on its merits.

HIS HONOUR:   Am I right in thinking that but for his desire to express his reasons with some deliberation or care, there would have been nothing to stop the Tribunal member giving his decision right then and there at the end of the second hearing?

MR GAGELER:   That is correct, your Honour.  I do not have the statutory provision in front of me but I think that the Tribunal can give reasons orally, but I will check that.

HIS HONOUR:   Do they ever do that or do they always go away and write something?

MR GAGELER:   They do it orally sometimes, I am instructed, yes.  Your Honour has seen in my written submissions the reference to Justice Hely’s judgment where, in my submission, what occurred before the Tribunal is fairly characterised.  Your Honour will have noted Justice Hely’s quotation from Galea v Galea in the judgment of Justice Meagher in particular.  Without asking your Honour to turn to them, can I ask your Honour to note Galea v Galea.  Justice Meagher’s judgment contains the passage at page 283; Acting Chief Justice Kirby’s discussion, relevantly, is at page 279, but I would also ask your Honour just to note the transcript of the proceedings before Justice Powell, excerpts of which are contained in Justice Kirby’s judgment at pages 274 to 275, and 276, and compare those with the transcript of the proceedings before the Tribunal in this case and your Honour may well conclude that the Tribunal was much milder than the judge at first instance in Galea v Galea had been.

Finally, your Honour, can I simply refer to a passage in the judgment of Chief Justice Gibbs in Re Lusink; Ex parte Shaw 32 ALR 47 at page 50, partly extracted in my written submissions. But what it shows is that even for apprehended bias to be made out, apprehended bias must be firmly established before prohibition or another prerogative writ will issue. If your Honour pleases.

HIS HONOUR:   Thank you, Mr Gageler.  Yes, Mr Game.

MR GAME:   Your Honour, just in respect of Lusink, I think what the Chief Justice said that what must be established is the suspicion which “may reasonably be engendered in the minds”, so it is the firm establishment of a suspicion.  So, it is not a very high standard.  That is, in fact, the words that are used: 

must be “firmly established” that such a suspicion may reasonably be engendered in the minds of the parties or the public –

My friend says in an emollient submission, in a glossy submission, that really makes the best of – a “flashy” submission he says.  He says, “Well, look, the Tribunal was impatient, showed irritation, frustration, expressed opinions, disbelief but no apprehended bias.”  But, your Honour, when you couple that with a careful examination of what was going on – not listening, not inquiring – then, in our submission, it is a clear case of apprehended bias, if you bring those things together.  He never gets answers.  He is never looking for answers.  It is that bringing together the – as I said, my friend said, “Well, it is impatience, incredulity, irritation and so forth” but, as I said, when you bring those things together with not listening, not inquiring, constant interjection with his opinions about the case, many times quite irrelevant, many times presumptive, then, in our submission, a clear case is made out.

Now, I just wanted to correct one small matter.  At page 208 - - -

HIS HONOUR:   Page 208 of exhibit RK1.

MR GAME:   Yes.  Mr Gageler said that he did not get an answer to the stoning question.  Well, he did get an answer and the point I made before was he was not actually interested in what the answer was.

HIS HONOUR:   Whereabouts on page 208?

MR GAME:   Point 3, and that was one of the instances that I was, in fact, relying upon.  Now, apart from those comments, I do not have anything else in reply, your Honour.

HIS HONOUR:   Very well.  Then I will note that you have 14 days from today in which to file any supplementary written submissions you wish to make and Mr Gageler has 7 days after that.

MR GAME:   Thank you, your Honour, and if we could approach the transcription people as previously - - -

HIS HONOUR:   Yes, certainly.

MR GAME:   And if anonymisation could extend to employers and the like, if necessary, would that be acceptable to the Court?

HIS HONOUR:   Yes.

AT 12.11 PM THE MATTER WAS ADJOURNED