Re Minister for Immigration and Multicultural Affairs [2003] HCA 60 (8 October 2003)

Re Minister for Immigration and Multicultural Affairs [2003] HCA 60 (8 October 2003) - HCA 2003 case summary — Zoe

[60]

"M I don't understand what the connection of this incident? There is nothing else happened. I don't understand the connection of that when police took you to the police station? > > I This is the issue, Sir, because the Singhalese people living around my house in the neighbourhood - normally no one comes to my house. In case if someone comes they note and inform the police that this is taking place. Because of this reason when I was taken to police they asked about this and threatened a lot. > > M Previously when you were talking about the incident with the police you told me it happened because the Singhalese boys who would come to your place had been sent away. And you said nothing. You said nothing when you described it. I asked what the police had said. You said nothing about them asking you about this incident. I don't understand. > > I In the police station, Sir, they asked me about this whether I had any connections with the LTTE. > > M Did they ask you specifically about these two people coming to your house? > > I They asked this and in fact as a result of this that incident happened. > > M Did they specifically ask referring to the two persons coming to the house? > > I How could I have spoken because they were beating me they asked me whether I had any connections with the LTTE? > > M Did they specifically ask you whether these two people had come to your house? Did they specifically refer to them? > > I Yes. > > M Why didn't you mention previously when you were talking about what police said to you when they took you to the police station? > > I Because I don't remember very well and this is not a pleasant thing to speak about? > > M Well well this question about these two people coming to your house if it is something that you may attach significance to it was not mentioned in your very detailed written statement. It was not mentioned in [your] detailed evidence to the tribunal at the first hearing. It was not mentioned today when you were speaking about that period and only mentioned in the last few minutes. I have some difficulty with that. I have to say. > > I All these things are related to that police incident and therefore in the statement, because my mother doesn't know anything, and in fact, she should not know anything about this. > > M I don't understand why that would stop you from mentioning that the LTTE people had come to your house and asked you to join if that was the case particularly since at the previous hearing you mentioned briefly a fear that you might be asked to join the LTTE and did not say that you have ever been asked. I don't see how that would involve talking about the police itself. > > I All these events are related to that incident and therefore I didn't wish to tell anyone. > > M Even when you told me about the other incidents an hour ago. > > I Even to think about this I find it very difficult for my own self."

[172]

"There were some problems with differing evidence by the [prosecutor] in her application and statement and at hearings, which suggested that her recollections might be unreliable. For example, in her application the [prosecutor] had stated that she worked in Colombo from August 1994 to December 1995, but at the last hearing stated that she was in Colombo for only six to seven months. Also at the hearing, the [prosecutor] played down the frequency of her visits back to Sri Lanka until she was prompted by reference to her passport and, similarly, overstated the frequency of accommodation moves in the mid to late 1980s until reminded of documentary evidence previously submitted by her mother. > > The Tribunal had more serious difficulties with the new claims which emerged at the hearing before the present Tribunal, not having been mentioned at all in her original lengthy statement or at the hearing before the previous Tribunal. > > Although in her original statement the [prosecutor] had referred to some Singhalese youths coming to her house in Nilambe and being scolded away by her elderly maid, she made no mention of being taken to the police station the next day because of this, let alone that she had been accused by the police of LTTE contacts or that she was raped in police custody. The [prosecutor] stated that she had not mentioned the rape previously because her former husband and mother did not know about it and so she had not referred to it. However, that does not adequately explain why the matter was not raised at the previous Tribunal hearing at which neither her husband nor mother was present (and does not explain why being taken to the police station was not mentioned at all)[44]. Nor was the rape referred to in a psychological report submitted by the [prosecutor] to the first Tribunal in February 2000, prepared by a consultant psychologist from the Queensland Program of Assistance to Survivors of Torture and Trauma after some ten appointments with the [prosecutor] (some without her mother or husband present). > > The Tribunal's concerns about this were strengthened by the [prosecutor's] linking this alleged detention and rape with her other new claim, that she had been approached that same year to join the LTTE and that the police had asked her specifically about those persons who had approached her. The Tribunal found the [prosecutor's] evidence about this particular claim to be most unsatisfactory. It is evidence that one would have expected to have been provided at the hearing before the previous Tribunal when the [prosecutor] was asked specifically about her claim that she fears the LTTE because she believes that they might try and recruit her. However, notwithstanding the previous Tribunal's question, the [prosecutor] on that occasion made no reference at all to the claim now advanced that in 1995 two persons had come to her house on more than one occasion and had asked her to join the LTTE. Nor did the [prosecutor] mention this matter when she first referred at the most recent hearing to being taken in by the police for allegedly threatening the Singhalese youths, whereas later in that hearing she claimed that the two matters were linked and that this was the reason she was taken in and questioned. At one point in the hearing the [prosecutor] stated that it was the two teachers who had approached her in 1995 and asked her to join the LTTE but later she stated that it was two friends of the teachers who came to see her and asked her to join the LTTE. > > The way in which this claim was presented and developed at hearing led the Tribunal to conclude that this did not represent the [prosecutor's] own actual experience. Further, the Tribunal found it most implausible that two persons who the [prosecutor] had met through teachers when she was a young girl should suddenly come to her house eight years later 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 [prosecutor's] claims. The [prosecutor'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. > > Having carefully considered the [prosecutor's] evidence about these particular matters, the Tribunal does not accept that the [prosecutor] 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 review of the [prosecutor's] credibility on other matters, especially where her stated fears are inconsistent with her actions in repeatedly returning to Sri Lanka."

[175]

"IT IS ORDERED THAT: > > 1. The first and second respondents show cause why, in respect of decision of first respondent made on 17 July 2001 that the prosecutor was not entitled to a protection visa: > > 1) A Writ of Mandamus should not be issued out of this Court directed to the first respondent to rehear and determine the matter according to law. > > 2) A Writ of Certiorari should not be issued out of this Court directed to the first respondent to remove into this Court the decision to be quashed; and > > 3) If the above Writs of Mandamus and Certiorari are issued, an Injunction should not be issued out of this Court directed to the second respondent restraining the second respondent from removing the prosecutor from Australia until the matter has been reheard and redetermined by the first respondent. > > UPON THE GROUNDS THAT: > > 1. The Applicant was denied natural justice and procedural fairness required to be observed by the Tribunal with respect to its review of the delegate's decision and in reaching its ultimate decision. > > PARTICULARS: > > 1. The Tribunal during and in the course of the hearing conveyed to the Applicant wrong and misleading impression which misled and induced a false belief on the part of the Applicant that the Tribunal had accepted her claim and evidence given by her that she was raped and there was no need for her to give any further evidence or make any representations regarding the incident of rape. In the circumstances the Applicant was disadvantaged by the conclusion and findings reached by the Tribunal that it could not accept her claim and evidence that she was raped. The conclusion and findings reached by the Tribunal were improper, unfair and not in keeping with the rule and principles of natural justice. > > 2. The wrong and misleading impression and false belief referred to in paragraph 1 herein was caused by the [statements made in the first exchange and subsequently] ... > > 3. The Tribunal drew unfair and improper adverse inference and conclusion against the Applicant that she was not raped on the basis that the incident of rape was not mentioned in the psychological report that was tendered at the earlier hearing. In as much as the Tribunal had not made any inquiry and had not asked the author or the Applicant for any other plausible explanation as to why the incident was not mentioned in the report, the adverse inference and conclusion drawn by the Tribunal in all the circumstances was not in keeping with the rule and principles of natural justice. > > IT IS FURTHER ORDERED THAT: > > ... > > 3. That there be an enlargement of time to permit the prosecutor to commence proceedings for the relief specified in this Order Nisi. > > 4. That the second respondent his agents and delegates be restricted from removing the prosecutor from Australia until the determination of these proceedings in the High Court. > > IT IS FURTHER ORDERED THAT: > > 1. The applicant/prosecutor pay the respondent's costs of High Court proceeding No S154/2002 up to and including 30 August 2002. > > ... ."

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Judgment (227 paragraphs)

Re Minister for Immigration and Multicultural Affairs [2003] HCA 60 (8 October 2003)

Cases Cited (21)