Applicant S154/2002, Ex parte - Re RRT & Anor S154/2002 [2003] HCATrans 716 (7 May 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S154 of 2002

In the matter of -

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

First Respondent

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

Second Respondent

Ex parte -

APPLICANT S154/2002

Applicant/Prosecutrix

GLEESON CJ

GUMMOW J

KIRBY J

CALLINAN J

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 MAY 2003, AT 11.17 AM

Copyright in the High Court of Australia

__________________

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

MR S.J. GAGELER, SC: If the Court pleases, I appear with my learned friend, MR S.B. LLOYD, for the second respondent. (instructed by Australian Government Solicitor)

GLEESON CJ: There is a certificate from the Deputy Registrar that she has been informed by the solicitor for the first respondent that the first respondent does not intend to appear at the hearing of this matter and will submit to any order of the Court save as to costs. Yes, Mr Patel.

MR PATEL: Your Honour, it would be convenient to start from the applicant's outline of submissions filed in this matter on 28 April. Your Honours, this is an application in which the applicant seeks to move the Court that the order nisi made by her Honour Justice Gaudron on 7 November be made absolute. We rely on the same evidence and the material that was relied on in respect of the order nisi. That consists of the application book and the relevant papers and material, particularly the affidavit evidence. On page 2 of the index of the application book, your Honours, it sets out the material that was in the High Court in relation to the order nisi.

KIRBY J: Could I ask you a question on the record. The Minister has sought to read an affidavit of Ms Warner. Do you have any objection to our reading any of that - - -

MR PATEL: Is it in relation to the exhibit, your Honour?

KIRBY J: It is a bundle of documents in the departmental file.

MR PATEL: We have no objection, your Honour.

GLEESON CJ: Neither party, as I understand it, has any objection to any of the affidavit material and we have read that material.

KIRBY J: If the issue of the rate was such an important deprivation of natural justice, why was it not even raised before Justice Wilcox in the proceedings at first instance in the Federal Court?

MR PATEL: Your Honours, this was under the legislation then was in existence. The ground of natural justice was not available and the applicant had to rely on the Commonwealth remedy under section 75. The matters which the applicant seeks to canvas could not have been canvassed - argued under the provisions of the Migration Act, Part 8.

KIRBY J: Is that because section 476 had deleted natural justice, is it?

MR PATEL: That is true, your Honour.

GLEESON CJ: Yes.

MR PATEL: Your Honour, this appeal, as can be seen from the written submissions, turns on a very narrow issue, and it is a question of whether or not, on the facts of the matter, whether the applicant was denied natural justice and whether there was a procedure adopted by the Tribunal, particularly the interrogation, was it in all the circumstances fair.

Now, I have sought to put the applicant's perspective in the written submissions as best as I could, and I do not think I can explain any further, but unless your Honours have particular aspects which you would want me to comment further we are happy to rest on the written submissions.

There was also a reply filed in response to the respondent's submissions, which is - it was a very brief reply - for the same reasons, because as we see it, this matter does not really involve any complicated questions or issue of law. It is just a question of fact, and how one looks at it - or it is a question of perceptions and whether your Honours can accept the view that has been advanced in the written submissions that that is the view we take or that is how we perceive whether natural justice has been denied.

Briefly I would like to use this opportunity to touch on two points, that is the points I raised in reply to the written submissions of the respondents. One was the point raised was that we had not argued - when we say that the Tribunal did not approach the question with an open mind, that was the drift in the written submissions we put in, the respondent appears to have taken the view that - - -

KIRBY J: Can I just get it clear in my mind, is the essence and, indeed, the entirety of your case that when the Tribunal member was told about the allegation of rape, he effectively stopped your client from elaborating the point.

MR PATEL: Yes.

KIRBY J: Well, the suggestion is that it was your client who had said, before the allegedly offending words, "I cannot tell this", and the Tribunal member said:

Ok. I don't need to ask you any further question about that particular incident.

The suggestion is that that is simply your client saying she cannot go into the details and the Tribunal member saying, "Well, if that is how you want to put it, I can't ask you anything more about it".

Now, is that a fair reading of what happened or not?

MR PATEL: No, your Honour. We submit that it has to be seen in its proper context. The applicant was, for the first time, as I suggested in the reply to the written submissions, that this sort of came from nowhere and it would appear that she was emotionally charged, highly charged, and this was not sort of pre-planned, that she wanted to say something was bothering her all the time, and she just blurted out - when they resumed the hearing, it was pressing on her mind and the way it came out, it does not necessarily mean that she said, "I don't want to speak" - she was saying that she was finding it very difficult to get these thoughts out of her head and it was a way of expressing that, "This is very difficult for me to say". She did not say that, "No, that is all I want to say". The way she came out - that she was struggling even when it came out that, "Yes, this is what happened", and that is what she was trying to explain that - - -

GLEESON CJ: Well, one of the problems is that we have no video record of what happened and when you just look at the transcript a lot might have depended on the way she actually said it and the way she was behaving when she said it. It is possible to imagine three or four different ways in which she could have been acting when she said what she said that might have conveyed different impressions to the Tribunal member.

MR PATEL: I take the point, your Honour, but from the transcript it appears - assuming that that has been correctly transcribed - - -

KIRBY J: That is the assumption we would make unless you move to correct it.

MR PATEL: Yes, what we can read from it, but the actual tone or how it came out is largely conjecture on my part. I must admit that I have not heard the tapes but there are tapes available. These were transcribed by - and I relied on the transcript. Gathering from the transcript, the impression I got was that she was trying to come out with something and looking at the circumstances and the abrupt way it came out we would submit nonetheless the Tribunal would have realised that that is what - it is not one saying on one hand that "I want to make this claim" and on the other hand saying that "I do not want to say anything about it".

Obviously she wanted to get it out of her mind and she was attempting to do that. She made it clear but she was also conveying that it is not easy for her to deal with this thing, but by saying that she was not conveying to the Tribunal that, "Sorry, I'm not going to say any more. This is all I can say". She was just beginning and, before she could go any further from the aspects that have been put, it would appear that - - -

KIRBY J: Is the long and short of it that you say where she says:

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

They raped me. Owing to this fear, I asked my mother to take me away. I cannot tell this.

M Ok. I don't need to ask you any further question about that particular incident.

Is it your contention that the Tribunal member should have said, "I realise that this is very embarrassing but, if you want me to rely on it, you have to give me some more details, because you've never revealed this before in what has been quite a saga of proceedings in the Tribunal and in the Federal Court. You've never mentioned it before. So, if you want me to rely on it, you've got to tell me about it". Is that what essentially you say was the Tribunal member's duty?

MR PATEL: That is true, your Honour, but I would go a little further than that. We would submit that the Tribunal must have realised that this is a very sensitive issue both for the Tribunal and for the applicant.

GLEESON CJ: There is no justification, is there, for attributing to the Tribunal in the words "I don't need to ask you any questions" a piece of arcane judicial jargon? There would not be half a per cent of people in the community who would interpret the words "I don't need to hear you" in the way a judge would interpret them. When a judge says to a barrister "I don't need to hear you on that point", the judge is saying "I'm in your favour", but 99.9 per cent of people in the community do not mean that when they say they do not need to do something.

MR PATEL: That is so, but the point we would make is that the rape information was being gathered was largely controlled by the Tribunal in the form of the question he was putting, saying that, "Look, this is where your focus should be". The impression conveyed to the applicant was that she was supposed to respond to what he was saying and not go on off the tangent and the way the Tribunal was controlling so she would realise that if some particular aspects of her story needed to be further elaborated he was putting her the questions and in this case when he says, "I don't need to hear you further", that means, "Look, don't go on about that. That is okay. Let's move on to the next topic."

GLEESON CJ: Yes, but it is fairly unlikely that the Tribunal would have meant, and it is almost incredible that your client would have understood the Tribunal to mean, by the word "need" what a judge means by the word "need" when he says to a barrister, "I don't need to hear you any further".

MR PATEL: Not in the legal sense. The sense in which the applicant, in our submission, would have taken those words would be that he is asking the questions about the matters he is not satisfied and he is exploring and as soon as he.....for whatever reasons. It does not necessarily follow that he is completely satisfied. At least, the message conveyed is that he does not want to hear or go on about it and it is immediately followed by another question. It is not that there is a pause and say, "Okay. Is there any more thing you would like to say?" or, as it was put that since she already admitted it was difficult and the function and the role being to gather the relevant material so the case is decided on its true merits, and in proper exploration of the merits, in those circumstances the Tribunal should have been sensitive enough to realise the predicament of the applicant and given her some room to relay her story or get the facts she wanted to put before the Tribunal.

KIRBY J: It is either a good point or it is a bad point, but it is within a very short compass. You say that by going on to ask questions of the Maldives after he said:

I don't need to ask you any further question about that particular incident.

In effect, whether the applicant was a lawyer or a lay person - as she was a lay person, it closed off that issue and therefore that issue in inquisitorial proceedings was not elaborated as it might have been otherwise. Is that what your point is?

MR PATEL: Yes, that is.

KIRBY J: It is either a good or a bad point, but it is a very short point.

MR PATEL: It is a short point that - - -

GLEESON CJ: Now, how could the issue have been elaborated by your client? What more could she have said?

MR PATEL: She could have related exactly the information in relation to the circumstances of the rape. If the Tribunal needed certain details about it - - -

GLEESON CJ: What kind of details?

MR PATEL: - - - or any particular way the incident happened, the circumstances and the facts leading to the event. The thing is the Tribunal could have at least attempted to give her some chance to explain it in her own ways what she had on her mind on that particular occasion. What happened was that she had gathered up enough courage to come out with this and before she could go any further she was cut short and the Tribunal directed the inquiry to other material matters.

Now, subsequently, the same thing happens, that at no stage she is alerted that, "Look, I would like to know a little bit more about this before I can say that, `Look, I can even accept that claim', or I would need to be satisfied, otherwise every applicant could come and make these sort of claims or allegations and the Tribunal simply cannot act on it. We need something more." When we talk about inquisitorial role, the Tribunal should have been sensitive enough to at least explore and give her some chance to put her version of story in her words.

That opportunity was not given. The subsequent interrogation that followed, this was not again picked up. If anything, it merely reinforced the impression that the Tribunal was not concerned with that incident, and it could be looked at two ways. One is that he is satisfied about the truthfulness of it or, he says, you could assume that regardless whether it is true or not, as far as he is concerned it is immaterial for the Convention reason that it may not amount to persecution and that as he does move to explore the issue of rape. That is of course conjecture on our part.

For whatever reason the Tribunal took the course it did. We have no idea, but from reading of the transcript and from the reasons given in the decision one gets this clear impression, particularly at the transcript at one stage he says, "Look, I've got these two things, new claims you raise. I don't have much problem with the first one, but the second one is the more difficult one". That leaves one with the impression that he has already "sorted it out in my mind". It has nothing to do with credibility. It could have to do probably with other legal ramification but whatever his focus was purely on the second issue which was whether or not attempts had been made by the LTTE to recruit her and he clearly says that they may be linked. He does not say they are linked, but he could feel that there might be linkage in it. That is one point.

The other thing is credibility. On the issue of credibility, in her statement, the very first statement she filed, she did not mention this incident. There is nothing about it in the statement. But the important statement in that is that she does say that after this incident she was suicidal, and she keeps quiet about the whole thing.

Now, one way of looking at it is that why this particular incident, when there is nothing in it, should make her suicidal. So the thing is one can infer that maybe that was the time she did not want to put the real things that were bothering her and driving her to those emotions. She had just cut it short, saying that these boys were bothering her and she was suicidal, but as soon as she got the opportunity she did come out with it, and again this was not premeditated; it just happened. Lucky that it did happen, that she did come out with it, so at least the Tribunal could have explored it at that stage.

Whether he would have been satisfied is a question we cannot determine because we do not know how the inquiry would have proceeded and in her emotional state what other information she could have given might not have given. It is one thing with the hindsight to say that this would have been done, but the real issue is what she might have said at that stage and how she got prejudiced.

Regardless of whether or not she was prejudiced or not it conveys the impression that she did not get a fair go. When you are talking about justice, it is just a question of looking at that on the whole. Would the applicant or somebody looking at it objectively say, "Did she get a fair go?" This is not something which we can sort of measure mathematically. It is a question of overall impression, and how that would be seen objectively by ordinary people, reasonable people, not from the lawyers' point of view. A reasonable person might say, "Look, here a Tribunal is asking her all sorts of questions relating to these other incidents. She has been grilled thoroughly, and this most important issue he doesn't even ask two, three questions and then looks at some other material and say, `I'm not happy with this' saying, `I don't believe that you were raped.'".

We have some other material; though not directly relevant, from the Internet that rape is - victims of rape, they sort of suffer from this syndrome that out of 10 cases statistically it is stated that hardly six of them report it. Most of them go unreported, because they notice - one looks at the percentage; what is to be gained, positive aspects, plus sides and minus sides, and most victims feel that if at the end of the day they are not going to get anywhere it is not worth coming out and disclosing that this is what happened. So it is a matter that weighs heavily on them.

So it is a matter that weighs heavily on him, but the material we put in, when your Honours have time, shows that the attitude of people vary a great deal. The English courts have sort of taken that rape does not mean much, it is not Convention related, and there have been cases - now there has been a shift in attitude and women are getting a better go. I am happy to say that that is not the position, at least as I see it, or never has been in Australia. At least in one case there has been obiter dicta where it has been recognised that rape itself could amount to persecution. So that question does not arise, but when it is put in proper perspective - - -

KIRBY J: What question does not arise? I did not follow that.

MR PATEL: It appears from the authority - Abebe, for instance, it was recognised that rape, if proved, could amount to an act of persecution for the Convention reason. It does not have to be - - -

KIRBY J: The allegation is that this was by the very people who ought to be protecting her against lawlessness and that - - -

MR PATEL: Yes,.....

KIRBY J: - - - it was the police who performed the act of rape.

MR PATEL: Yes, but the point I was trying to make was that there had been a contrary view expressed or contrary position taken in other jurisdiction, but the focus is again shifting back and the wind of change is towards the position that the women should get a better go and many of those countries are beginning to recognise that rape victims should be looked at in sort of - - -

KIRBY J: Is it your submission that in trying to be sensitive in answer to the contention of the applicant, "I cannot tell this", and saying, "OK, I don't need to ask you any further questions about the particular incident", and then moving on to other things, that, in fact, the Tribunal member proved to be unjust because he closed off the elaboration that was necessary if that point was to be given proper weight?

MR PATEL: That is true, your Honour.

KIRBY J: He might have been well-intentioned, but in performing his inquisitorial functions he really did not proceed as a proper tribunal should.

MR PATEL: That is true, your Honour, because the point perhaps that needs to be made is that this sort of - particularly rape victims is a sensitive issue and it requires handling in a sort of a different way and the Tribunal was - - -

GUMMOW J: What should the Tribunal member have said?

MR PATEL: The Tribunal should have given her opportunity to tell her story, because he should have sensed that she wants to tell something about this incident that happened and before she could elaborate she was cut short, because she was trying - "This is very difficult for me".

GLEESON CJ: Elaborate in what way? I mean, we do not have any evidence from your client saying, "If I had gone on and given more detail about this incident, my allegation would have been more believable". I do not quite grasp what you mean by this suggestion that there could have been some elaboration of this information that would have made the information more credible.

MR PATEL: Your Honour, the best I can put it is that she definitely wanted to get something out of her chest and she wanted to put something to the Tribunal and what she wanted to convey was what had happened to her while she was in custody. She just gave a bare outline that, yes, she was raped and then, in her own way - it is a matter of speculation what - she may have said something which may have promoted her claim or she may have been unable to say anything further and the Tribunal would still have been justified in saying, "Look, there is nothing that satisfies me that I can accept that claim".

GLEESON CJ: Correct me, if I am wrong - and I may not have read the papers in sufficient detail at this stage - but the Tribunal did not disbelieve her evidence on this point on the basis that it was not sufficiently particular, did he?

KIRBY J: The passage is on page 38. He said that what worried him was that it did not:

adequately explain why the matter was not raised at the previous Tribunal hearing at which neither her husband nor her mother was present -

and that she had not told the psych persons who prepared the psychological reports, despite the fact that there were 10 appointments, during some of which the mother and the husband were not present. Now, as I understand it, you make a complaint about that. You say, if he was going to rely on those matters, he ought to have put those to the applicant and said, "Well, you didn't mention it at the previous Tribunal meeting. You didn't mention it to those who prepared the psychological reports and therefore I am not inclined to give it any weight." Instead he cut her off and asked questions about the Maldives.

MR PATEL: Your Honour, that is a correct submission, but it does not end there, because the Tribunal should have realised that her husband - it is not true - in our reply to the respondent's submissions I express four or five points. One of the points that was expressed was that that is incorrect, because her husband was all the time with her throughout. The only occasion that he was not there was at the second Tribunal hearing, which is the subject of this appeal. So it is not true to say that she did not have anything to lose. At this stage, that was actually heavily weighing on her mind, and that was one of the considerations that would have definitely affected her psyche.

What we are saying is that when the matter came up for hearing before the second Tribunal, her husband had left her, deserted her and went back to Pakistan and now, she found herself in a situation where she did not have to worry, that was over.

KIRBY J: You are saying all these things from the Bar table but, as the Chief Justice pointed out to you, there is no evidence from your client to this effect. I mean, we are now in the original jurisdiction of this Court. We are sitting here, in effect, as a trial, and you are the applicant and the provision of relief is discretionary. You have the right to come here and seek the relief. We are listening to it. You have to prove the case. Would one not say that one would expect even a short affidavit saying, "Well, I was stopped, but the reason" - and he refers to the first Tribunal - "the reason I didn't tell the first Tribunal was that my husband was still around. He was Islamic and I was not, and I didn't want to raise the matter. It was sensitive, and he then went to Pakistan and I am now - I wasn't under the inhibitions." One would have thought one would have that on oath.

MR PATEL: Your Honour, if I may explain that? In the interrogation - during the course of the interrogation, she did mention that she did not want this to be disclosed to her mum and her husband, but apart from that, the Tribunal when he says that she could have said that because her husband was not there, before the first hearing, which is not true because - which is incorrect, because the Tribunal had the transcript of the first hearing. That was part of the thing he had taken into consideration. That transcript was again before her Honour Justice Gaudron when we applied for an order nisi, that the affidavit she filed, which she was relying on, covers both the transcript of the previous proceedings that took place before Vrachnas and the second before J.C. Blount.

Now, when the second Tribunal says that she could have done it, that is incorrect because if one peruses carefully the transcript of Vrachnas it shows that her husband was there, and he even says, "Would you like to move?"

Your Honour, what has happened is that in this matter when this application book was prepared, the applicant was unaided and this was done partly - mostly assistance was given by the solicitor for the - - -

KIRBY J: She had a migration agent at the second hearing, is that correct? I think Justice Wilcox refers to that.

MR PATEL: Yes, yes.

KIRBY J: And did she have a migration agent at the first hearing or not?

MR PATEL: Not a migration agent, but somebody from Queensland - there was somebody representing but I am not sure it was a migration agent.

KIRBY J: Maybe Mr Gageler can direct us to anything that relates to the first hearing. It may be in this bundle of papers which I have not read, but I have skimmed through them.

MR PATEL: Your Honours, it appears that the transcript, which for reasons which are not clear to me, do not appear to have been included in the application book, but we can make available a copy of - - -

GLEESON CJ: What is the point you wish to make by reference to this material?

MR PATEL: The point we wish to make is that when the Tribunal concluded that, look, this matter could have been raised - the issue was not raised before the delegate or the first Tribunal hearing and it was raised only at the second at the last minute and although she had the opportunity, because her husband was not there, but what we are saying is that that is incorrect because her husband was with her all the time, except on the last occasion. This is borne out by the transcript of the first hearing, which was tendered in evidence in the hearing of order nisi.

Unfortunately, your Honour - I am not quite sure, but that does not appear to be included in the application book. This application book, when it was prepared, the applicant did not have any assistance and legal - - -

GLEESON CJ: Perhaps you and Mr Gageler can agree upon a fact as to what occurred during the first Tribunal hearing that we could take notice of without any need to get this additional material, but you can talk to him in due course about that.

MR PATEL: Yes, and that, again, apart from other things, begs the same question, because what the Tribunal is saying that, "Look, this is my explanation, that this is what happened", and she did not want this to come out and that was the reason. But apart from that, your Honour, the Tribunal should have realised that rape victims usually suffer from this kind of trauma. It is never easy for them to come out and it is a well-known fact that in the majority of the cases which come to light, they very rarely are reported straightaway or the victims come out of it. Sometimes as long as 20 years people come out of it because it is still locked up in their mind and they want to get it off their mind.

So there is nothing new - it is not a new phenomena. If anything, we would submit that it is more believable, because if somebody wants to fabricate the whole thing it is better often to make a nice story and put it in the statement before the case goes to the immigration officer or the Tribunal. But when it is spontaneous and in the circumstances it came out we would submit that that perhaps shows that it needs to be looked at because that is not made up, it is not rehearsed.

The other point I might make at this stage was not putting in the evidence. It is again the same thing, like rehearsing. You would be rehearsing the test that is to be put before the Tribunal, what we could say with hindsight and put in an affidavit, "I would have said this, I would have said that, while this is the story I want to relate now", which is perhaps not as helpful because this is with hindsight. She could have come up with all kinds of fancy stories. But spontaneously how she would have reacted, we cannot really speculate because it depends on - we just cannot really say what would have come up and what might not have come up, but she should be given the benefit that in her emotional state she might have conveyed what really happened and how it came to be happening and why she did not disclose this thing before. Things like that might have come up and that would have probably given a complete different take to the Tribunal. The Tribunal places a great deal of reliance on this particular incident to estimate or judge her credibility on other matters.

That is another significant point which perhaps I might address, that here rape is an incident which, if the Tribunal accepts, if the Tribunal was of the view that that would amount to persecution, then it is a very substantial issue and the Tribunal for its own sake could have tried to explore it a little further and say, "Let's see whether that ground can be established apart from that". But the way the Tribunal interrogation proceeded and the reasons that have been given, one gets this clear impression that the Tribunal perhaps did not consider it as an important issue in that circumstance except what impact it has on the credibility.

So the importance which the Tribunal seems to have given to the issue, its focus seems to be on the issue of credibility saying that, "If I can't accept this, then I can't accept anything else", and in his final words he does mention that, "Look, this is what's bothering me. I've got a problem because this whole credibility issue - this is the thing and I can't accept the other thing". In our submission, it is more a question of how one looks at it, although I have cited some authorities. Unless your Honours want me to go to it specifically, they speak for themselves. They are just statements which merely reinforces the general view of what natural justice is and how the courts look at this.

GLEESON CJ: A little earlier in your argument you appeared to be about to open up a point that your opponent says is not available to you on bias. Was that something that you were attempting to make an issue?

MR PATEL: Yes, your Honour. I have a distaste for the use of the word "bias". It does not matter how it appears and - - -

KIRBY J: There seems to be no evidence whatsoever of bias in the case.

MR PATEL: No, and the thing is we are not even suggesting that there is a bias. Perhaps there seems to be a misunderstanding. What we are trying to put perhaps is simply this, that when we talk about open mind, is that one of the functions of the Tribunal, or whoever is deciding the issue or sitting in judgment, is to look at all the aspects of the matter and give a fair hearing. Fair hearing is not just hearing and not listening. An open mind means that you look at all the issues that are relevant. For any reason - it does not necessarily have to be bias - that could sort of happen because, for instance, if you are suffering from, say, lack of sleep or if you are distracted by some other incidents, psychologically your mind is not focused on the real issues.

So that sort of situation could arise from a number of factors. It does not necessarily have to be bias, but if on the proper reading of the material and all that is there, if the Court can find that, yes, there are certain issues on which the Tribunal does not seem to have paid much attention or has not focused its mind saying that, "Yes, how does this relate?"

Now, we submit that the issue of rape does sort of seem to indicate the way the Tribunal proceeded, saying, "Look, okay, we don't want to hear anything further. That is enough." Then, later on, there is a lot of other questions which are explored in great detail and with probing questions, but this particular issue, the Tribunal just.....to sort of put it under the carpet and say, "Okay, that doesn't look to be" - - -

KIRBY J: Look, Mr Patel, are you pressing an argument of bias, which means you will need an amendment, or not?

MR PATEL: No, I am not putting bias, no.

KIRBY J: It seems a completely spurious line of argument.

MR PATEL: No, your Honour - - -

KIRBY J: The Tribunal member might have made a mistake but the suggestion that he was biased is, I think, completely untenable.

MR PATEL: Your Honour, it is - - -

KIRBY J: I think it is to be discouraged. There is a bit of a tendency, now, to throw in bias in these cases and other cases and, speaking for myself, unless there is a proper foundation, I do not think that members of the Bar should put those arguments to the Court.

MR PATEL: We are not pressing that argument at all, your Honour. I would like to make it categorically clear that I am not alleging bias at all. Perhaps, the way I put it, if that is the impression that has been conveyed, then I withdraw that. All I was trying to put was that - the way it has been put, open mind, I just claimed those things from the statements, the directions that are given what natural justice is, and if that is looked upon as an over-euphemistic way of putting it that it was bias, then I am not pressing that point at all.

The point I was trying to make that without bias - whether or not - let us keep aside the question of bias, whether there was bias or not, we are not pressing that, but whether or not the Tribunal when we say open mind, it does not necessarily mean that open mind is because of bias. If the Tribunal fails - it is like taking into consideration irrelevant matters of - - -

KIRBY J: Yes. Well, we know the difference between bias and a breach of the rules of natural justice or procedural fairness. So that is how you are bringing your case and that is the only way in which I will look at it.

MR PATEL: Yes.

KIRBY J: That is the only basis on which Justice Gaudron gave you the order nisi.

MR PATEL: Yes.

GLEESON CJ: Now, have you covered your natural justice argument?

MR PATEL: Yes, your Honour.

GLEESON CJ: Thank you. Yes, Mr Gageler.

MR GAGELER: Your Honours, our learned friend is correct in identifying the ultimate question as being whether the prosecutor was defined a fair opportunity to tell her story to the Tribunal. On the claim to have been misled, that is paragraphs 1 and 2 of the particulars at pages 74 and 75 of the application book, the prosecutor's case is to be contrasted with the case for the prosecutor in Aala where there was, as your Honours will recall, direct and uncontested evidence before the Court that the prosecutor was, in fact, misled.

The prosecutor here has sworn three affidavits, all of which are in the application book, in which she has made numerous generalised complaints about being denied procedural fairness, but what she conspicuously does not do in any of those affidavits is to claim to have been misled, particularly not to have been misled in the way set out in those particulars. In our submission, in the absence of that direct evidence, the Court cannot infer simply from the record of the transcript - - -

GLEESON CJ: There is a form of judicial jargon - - -

MR GAGELER: Yes.

GLEESON CJ: - - - about not needing to do things or not needing to hear arguments, which at least in my experience is almost peculiar to the judiciary, and it may be that that particular is based upon an interpretation of the Tribunal's reference to not needing to do something that would not occur to anybody except a judge.

MR GAGELER: Yes.

KIRBY J: Well, I am not so sure about that, Mr Gageler, I have to say to you, because I mean at least on one view the applicant is content to just rely on the transcript - - -

MR GAGELER: Yes.

KIRBY J: - - - which was enough to get her the order nisi from Justice Gaudron.

MR GAGELER: Your Honour, and the question - - -

KIRBY J: And on one view the transcript itself is misleading in that he says, "I don't need to ask you further questions" whereas he is an inquisitor, and he did need to ask her further questions. He did need to tell her, "Well, I'm afraid you're here before me and you're asking for a protection visa, and I can understand you don't want to go into this, but your mother and your husband aren't here and I'm afraid you just have to if you want me to rely on it." So that is a bit misleading. And then to rely on the statements to the medical reports - - -

MR GAGELER: That is a separate point. I will deal with that separately.

KIRBY J: It smacks of misleading to me, and I do not think it is just judges. "I don't need to ask you any further question about that particular incident" and he did.

MR GAGELER: Your Honour, the question is one of fact for this Court to determine on the evidence, and the question of fact is whether it can be concluded that the prosecutor was prevented, hindered or discouraged in some way by the conduct of the Tribunal from telling a story she would otherwise have told. Now, that is the question. The prosecutor, in that respect, places the weight of her argument on one passage in the transcript of the hearing before the second Tribunal - which your Honours have been to already - and places the weight of her argument on the sentence in the Tribunal's statement, "I don't need to ask you any further questions about that particular incident", that coming immediately after the statement by the prosecutor herself, "I cannot tell this."

GLEESON CJ: The particular attributes the misleading nature of what occurred not to any misrepresentation as to the duty of the Tribunal but as to a state of mind said to have been induced in the applicant.

MR GAGELER: Yes.

GLEESON CJ: That is the form of misleading that is referred to in the particular - - -

MR GAGELER: Exactly, and your Honours have no direct evidence as to such state of mind. The question is whether that can be inferred on the balance of probabilities, and the answer is no, in our submission.

KIRBY J: It is a bit like the evidence on "What I would've done if the doctor had only told me of the risks of the operation". I know lawyers get these affidavits sworn but courts have also said that such assertions in the midst of litigation are not really as valuable as the contemporary information. The contemporary information is there in the record. "I do not need to ask you any further questions", and then he goes on to the Maldives.

MR GAGELER: He goes on further, and can I deal with that? In our submission, if one were confined to page 10 of the application book, line 28, upon which the weight of the prosecutor's argument is placed, one would not infer on the balance of probabilities - to use our learned friend's language that the prosecutor was cut short, one could infer as at least equally likely that the Tribunal was sympathetically responding to the prosecutor's statement on the previous line, "I cannot tell this."

GLEESON CJ: What line is that? Yes, line 25.

MR GAGELER: Yes, but it does go on, and the point is that the rape incident was not simply so left during the course of the hearing. It was returned to, and what later happened - and unfortunately the transcript is not - - -

KIRBY J: No, you have to read on, "Ok". So he is sort of - - -

MR GAGELER: Yes, and then he goes on to the Maldives, and they are events that occurred after the date of the alleged rape, but what later happened in the course of the - - -

KIRBY J: It looks like closing it off?

MR GAGELER: Your Honour, I have dealt with that in its own right. What I am seeking to do is to put this passage in a larger context, and to really make the point that the incident was returned to, and the incident was returned to later in the hearing where it became linked with another new claim that was made by the applicant - by the prosecutor for the first time, and it was a claim about being approached by two members of the LTTE, that is the Tamil Tigers organisation, those two people either being teachers or friends of teachers. It is not really clear.

Where it comes, your Honour, is at page 14 and following, and it does not come in any very clear way, but there is a question at the bottom of page 13 - a long question from the Tribunal - and what the Tribunal is saying at the bottom of page 13 is that he was having difficulty in seeing how the prosecutor could be suspected of being involved in the LTTE, one of the previous claims she had made. In response to that question, one gets a rather confused picture emerging at pages 14 and following about her being approached by two members of the LTTE before the rape incident in 1995, and it is somehow linked with some teachers she had known in 1987, but it becomes most clearly linked, in the evidence, at page 16, about line 32:

Because of this reason when I was taken to police they asked about this and threatened a lot.

Your Honours see what is there in the transcript down to about line 46. So this new claim about being approached by two members of the LTTE becomes linked with the police taking her into custody, and in that way with the rape. Then it is further linked, your Honours, page 17 - - -

KIRBY J: There is no mention of the rape in that - - -

MR GAGELER: It is referred to as the incident, "that incident happened". At page 17 it becomes perhaps a little clearer - none of this is very clear, I am afraid, your Honours - from line 5 through to line 34.

GLEESON CJ: If you could give us a moment to read that?

MR GAGELER: Yes.

GLEESON CJ: I have not understood the temporal connection between this.

MR GAGELER: It is terribly confused, your Honour, but the story she is telling, the story that emerges, is that she was approached on two or three occasions shortly before the incident in 1995, when she was taken into custody by police by two members of the Tamil Tiger organisation who were seeking to have her join. She says that led to her being taken into custody and part of the reason why she had not told about this approach by the Tamil Tigers was because it was bound up with her being taken into custody, the incident that she did not want to disclose in front of her husband and her mother. That is the sense of what one gets from this passage, particularly line 16 where she says:

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.

And about line 26 again:

All these events are related to that incident and therefore I didn't wish to tell anyone.

Then your Honours will see page 19, line 2 to line 10, the Tribunal expressing considerable scepticism about the two related new claims, that is, that what he describes as the:

treatment by the police at the police station in 1995 -

including the rape, and the claim about being approached:

to join the LTTE in 1995 -

and your Honours will note, line 11:

Do you want to say anything about that?

And there are some things that are said, but there are more opportunities. At page 20 line 11:

Is there anything else you would like to say to the tribunal about any of these matters you think are relevant while you have the opportunity?

KIRBY J: Where is that?

MR GAGELER: Line 12.

KIRBY J: Yes.

CALLINAN J: On one view of it, as to the rape itself, it might be thought that the Tribunal had expressed perhaps satisfaction of her version or going back to the earlier cases.

MR GAGELER: Your Honour, that might be one view. In our submission it is not the preferable view and it is not the view to which the Court would come.

CALLINAN J: Except she was consistent about not wanting to go into the detail of the rape and, on one view of it, the Tribunal seems to have accepted that all that needed to be said about the rape had been said. I am not saying that is the only view of it, but - - -

MR GAGELER: She seems to be fairly consistent in saying that she did not want to go into the detail, I accept that, but whatever impression one might have got about the Tribunal's acceptance of the fact that the rape had occurred from simply reading what was said at page 10 of the appeal book, by the time one gets to page 19 of the appeal book - - -

KIRBY J: That is only a matter of minutes later, Mr Gageler.

MR GAGELER: It is about an hour later, I think, within the context.

KIRBY J: Yes, but it is in the context, "I don't need to ask any further questions about that particular incident". I mean, I do not doubt that the Tribunal member was trying to be sensitive to the predicament and as the Chief Justice pointed out, we do not know if the applicant was crying about that time or upset in some way or obviously upset; we just have no way of knowing that. But the fact is that sometimes it is better just to have silence at such a time to let people tell their story, embarrassing and difficult though it is, and he cut it off and went off to the Maldives.

MR GAGELER: Well, your Honour, I have sought to say that he did not cut her off at that stage, or your Honours would not conclude on the balance of probabilities that she was cut off, that she would have said something in the very next line if he had not said, "All right, I don't need to ask you any further questions" but your Honour, by the time one gets to page - - -

KIRBY J: I hate to say this, but I wonder if a woman would have been more sensitive to the predicament of a woman who was from a culture of Sri Lanka, who was herself - and had a marriage to an Islamic person, although she was not Islamic, who had then gone off to Pakistan and she got her mother there. She does not want to tell these stories because in that culture and in any culture perhaps, it is extremely awkward to open up about such matters. Then she gets a Tribunal member who really says, "Well, I don't need to ask you questions about it" and does not as it were, as the inquisitor, sensitively but necessarily, let her tell the story before he knocks it on the head by reason of the fact that she has not told it to the previous Tribunal or to the psychiatrist.

MR GAGELER: Your Honour is characterising the facts in a way that your Honour appreciates we do not accept.

KIRBY J: I know you do not accept it, but that just - - -

GLEESON CJ: What an amazing thing that we are sitting here speculating about something, where an enormous amount could have turned on the demeanour of the person being questioned and of the questioner, and we know that there is a tape recording of it, and we have not heard the tape recording. Let me take an analogy from an area of law completely different from this. For 10 years I sat on the Judicial Commission of New South Wales and people used to complain about the conduct of magistrates cutting people off and not giving them a proper hearing and so forth. It was always resolved one way or the other by just playing the tape. You could practically never determine it by just looking at the transcript. How do we know, for example, what time elapsed, if any, between her statement that she did not want to tell this and his response, "Ok. I don't need to ask you any more questions".

MR GAGELER: He does actually refer to "the questions I asked about an hour ago" - - -

GLEESON CJ: No, I am talking about the lapse - I am not talking about the time that elapsed between page 19 and page - - -

KIRBY J: It is page 10 about line 25.

MR GAGELER: Yes, there was a break, your Honours - - -

GLEESON CJ: No, no, I am not making myself clear. If you go to page 10, she says something on line 25.

GUMMOW J: Yes, the gap between lines 25 and 26.

GLEESON CJ: And he uses the word, "Ok".

MR GAGELER: I am sorry, yes. Well, one does not know that.

GLEESON CJ: How do we know what length of time elapsed between her answer and his following response?

MR GAGELER: We do not, obviously.

KIRBY J: I should make it clear. I am not suggesting the Tribunal member cut her off in the sense of jumping in and stopping her from - in fact a length of time there would be more telling because it would mean that she was not able to verbalise the predicament.

MR GAGELER: Yes.

KIRBY J: I am just saying that instead of, as it were, sticking with that issue, which she now says is an issue which is relevant to her entitlements under our law, the Tribunal member said, "I don't need to ask you questions" and then he went off onto another issue.

MR GAGELER: He did, and what I - - -

KIRBY J: I am just saying that as I understand the order nisi was granted on the basis that that really deprived her of a chance in what I can at least imagine would be a difficult position for a person of her ethnicity, her background, her inter-religious marriage, dependence on her mother in a foreign country in a foreign language, explaining this particular matter.

MR GAGELER: Yes. Your Honour, I think there is no doubt that the question really just comes down to whether or not she was deprived by that short sequence of events from telling the story that she would otherwise have told. What I am seeking to show to your Honours is that whatever might have been the position if the hearing before the Tribunal had been cut off on page 10, what emerged later in the hearing was a new claim, the new claim being linked with the rape claim, and the two claims together being treated with considerable scepticism by the Tribunal - page 19 line 12.

GUMMOW J: Well, does it not come about pages 38 and 39?

MR GAGELER: That is how the Tribunal then deals with it, yes.

GUMMOW J: He did not believe her.

MR GAGELER: He did not believe her, no.

GUMMOW J: One of the reasons he did not believe her was that she did not adequately explain.

MR GAGELER: That is right, yes.

GUMMOW J: Well, did he not have to say to her, "Look, this is all terribly embarrassing, but I'm afraid if you can't tell me more, I won't be able to believe you"? Is that not the real complaint?

MR GAGELER: In essence, but, if that is the real complaint, it is really dealt with by the passage at the top of page 19. He is saying, "You've made these two new claims. I'm having a great deal of difficulty believing you. What do you want to say about it?" He goes on at page 20 line 12 - I have already drawn your Honours' attention to that. Then line 45, last sentence:

Are there any other particular matters that you want to raise?

I Those who provide security or protection did not provide me with security.

M Did you when you had the problem with the local police in 95 - - -

KIRBY J: Where is this? I am sorry, I cannot hear you.

MR GAGELER: Page 20. I started at line 45 and I was going on to line 51.

KIRBY J: Yes, I have it, thank you.

MR GAGELER: So it is returned to and there is another answer about it. At the top of page 21, open-ended question:

M Ok is there anything else?

There is obviously a pause because what is said is - and it is obviously a statement of the Tribunal:

I While you are thinking about that I might ask your advisor whether he would like to say anything to the tribunal at this point?

A Yes I would like to give a written submission - - -

HEYDON J: So the "I" should be "M" at line 5?

MR GAGELER: Yes. It does not make sense otherwise. Then line 35, after the written submission is sorted out:

M Ok, now . . . your advisor is going to provide me with a further submission and comments in a week or so about any of these matters . . . But in the meantime is there anything else you would like to say while you have the opportunity in this hearing which is to close very soon.

GUMMOW J: It is really the passage at the top of page 19, is it not?

MR GAGELER: I am seeking to show that - - -

GUMMOW J: That is when he actually says something to her, "I have to think very carefully about these matters", but what does the sentence at line 10 mean:

I have to consider whether it is reasonable to accept that each of these was raised on previous occasions - - -

MR GAGELER: If one puts a "not" before "raised" it makes sense, it makes perfect sense and whether or not - - -

GLEESON CJ: It is reasonable to accept having regard to the fact that these were not raised?

MR GAGELER: That is another way of doing it. Either way, the sentence then makes perfect sense.

GLEESON CJ: But there is a question on the bottom of page 20 that I would have thought goes directly to her credibility - the last question on page 20?

MR GAGELER: Yes.

GLEESON CJ: I presume - maybe I am wrong - but I presume that the reference to the problem with the local police is the rape?

MR GAGELER: Yes - well, it is referred to variously as the incident or the problem but, yes.

GLEESON CJ: And he is putting to her there that she did not complain about this to anybody?

MR GAGELER: Yes. So, your Honours, the point that I was wanting to make is whatever one might take from the isolated statements at page 10, by the time one has got to the end of the hearing, page 21, it is clear that the Tribunal is not simply accepting the fact of the rape. The Tribunal is expressing scepticism and the Tribunal is repeatedly inviting the prosecutor to say whatever she wanted to say, including in written submissions, and that invitation to put in further written submissions was taken up, and the rape incident was addressed in the written submissions, again, in a rather summary way, but there was no inhibition on how fully that could have been dealt with.

KIRBY J: What page is that?

MR GAGELER: It is in Ms Warner's affidavit, the exhibit to that affidavit. Page 159 is the beginning of the written submissions. Paragraph 17 deals with the rape.

GLEESON CJ: Sorry, I just do not have that affidavit? What page of - - -

MR GAGELER: Page 160 of the exhibit. I am sorry the exhibit is not bound, your Honours. I know it is inconvenient. The letter begins at page 159. Page 160 paragraph 17 addresses the rape, and paragraph 18 refers to the contact with the LTTE.

CALLINAN J: I suppose, Mr Gageler, really the Tribunal knew everything that was needed to be known about the rape. Any details or particulars would not have added anything, would they?

MR GAGELER: It is hard to see that, your Honour, but I am not seeking to base my argument upon that.

CALLINAN J: No, but think about it for a moment. It is right, is not it?

MR GAGELER: Yes.

CALLINAN J: She says that she was raped. She says the occasion upon which it occurred. She gives some details of the occasion upon which it occurred. When the Tribunal says, "All right, there is no need to go on with that", there is not any need to go on with it. The Tribunal knows what the Tribunal needs to know.

MR GAGELER: Your Honour, I think I would have difficulty in putting a submission that it was inconceivable that something more that she could have said might have affected the reasoning of the Tribunal.

GLEESON CJ: I have an impression, and it might cut both ways in the argument, but if you look at all the occasions when he came back to it - and he did come back to it on a number of occasions - he seemed to go out of his way to avoid asking her anything about what I might call the physical details. Whenever he comes back to the subject he seems to raise it in a way that distinguishes between the incident of the rape and what I might call the details of it.

MR GAGELER: He certainly does not ask about the physical details, and if that is what your Honour and Justice Callinan is asking me then, yes, I could readily accede to that, yes.

CALLINAN J: That is exactly what I am asking you. What would the physical details have added? I cannot think of anything. That is why I was surprised by your answer that it was inconceivable - - -

MR GAGELER: No, I am sorry. I misunderstood your Honour. I had understood the prosecutor to place the burden of the case on being able to explain further the - not having mentioned the rape on the previous occasion.

GLEESON CJ: He never said to her, for example, "How many police raped you?"

MR GAGELER: No.

GLEESON CJ: "How long did it take?" "How many times did it happen?"

MR GAGELER: Yes.

KIRBY J: But if you are going to disbelieve a person about an incident, it is normal in our processes that you allow them to give their version of the incident so that by the colour and detail it becomes either more or less credible. That is the way our whole system works.

MR GAGELER: I am not sure what system your Honour is there referring to.

KIRBY J: The legal system.

MR GAGELER: That is the judicial system. It may be somewhat different from the inquisitorial system.

KIRBY J: Yes, but a fortiori in an inquisitorial matter where he is in command, he has to get it out.

MR GAGELER: Yes. What he has to do is he has to sit and he has to listen to whatever story the applicant wants to tell.

KIRBY J: And not cut it off.

MR GAGELER: And not to cut it off. I accept that. Now, in my submission, that is exactly what he has done. Whatever might be taken from the isolated exchange at page 10, by the end of the day - and I am including there not simply the oral hearing but the written submissions - the prosecutor had been given every opportunity to say whatever she wished about the rape incident in circumstances where the - - -

GUMMOW J: That is not the real point. The real point is whether it was put to her that she really should explain adequately why she had not spoken about it to the previous Tribunal because it was that upon which the Tribunal decided against her credibility at page 38, lines 10 to 15.

MR GAGELER: Yes. That is the really the point, then, your Honour, at the top of page 19.

GLEESON CJ: I am looking at the ground on page 74, which is that he induced in her a belief that he accepted her claim that she had been raped and there was no need for her to say anything more about it. That is the ground.

MR GAGELER: Yes. That is the ground and, your Honour, the response to that is your Honours would not find that to be the fact. Your Honours do not have any direct evidence of such a belief being induced and your Honours would not infer such a belief in the absence of that direct evidence.

KIRBY J: Perhaps if the applicant were represented before this Court by senior counsel, junior counsel, experienced solicitors and all the resources, she might have done that, being assisted by Mr Patel who is appearing without a solicitor and she is here and she says, "Applicant in Person" on the front page of the application book, she just has to do her best.

MR GAGELER: Your Honour, she appeared represented by counsel before Justice Gaudron on four occasions and had each of those four occasions to get the evidence in order and, if I can speak colloquially, your Honour, she had done pretty well out of the judicial system. This is not the first time she has been to court.

Now, so far as the claim based on the use of the psychologist's report is concerned, that is paragraph 3 of the particulars at page 75 of the application book. Your Honours might note that that report is at page 99 of the exhibit to Ms Warner's affidavit. We have dealt with this in our written submissions, but it really comes down to saying two things: one is that the report was a report submitted by the prosecutor herself; it was therefore known to her. The second thing is that the use that was made of the report by the Tribunal, page 38 lines 19 to 24, is a use which, in our submission, was, to use the language of the cases, obviously open to the Tribunal and, paraphrasing that, its use was in all the circumstances unsurprising.

This is not a case as in, for example, Somaghi, in the Full Court of the Federal Court, where your Honour Justice Gummow sat, where a Tribunal drew some new factual inference from material that had been submitted by an applicant for a protection visa. It is a case where the Tribunal is responding to a new claim made by an applicant in the course of a hearing and testing that new claim in the light of the way in which the applicant previously put her case, and there is nothing more to it than that. Your Honours, in terms of authorities, I do not wish to burden the Court - - -

KIRBY J: Can I ask you on the.....is the position, as Mr Patel said, that at the relevant time she could not go to the Federal Court on a natural justice complaint. Is that correct?

MR GAGELER: At the time of lodging the application, which was heard before Justice Wilcox, the old section 476(2A) was in operation.

KIRBY J: So that you do not raise any complaint on the discretionary basis that she should have exhausted any remedy she had in the Federal Court?

MR GAGELER: No, we do not. Your Honours, we have referred in paragraphs 27 and 33 of our submissions to the relevant passages in Abebe and Aala. There is a more general and very useful statement of principle in the judgment of the Full Court of the Federal Court in Alphaone [1994] FCA 1074; 49 FCR 576, the passage appearing at pages 591 to 592 and, in particular, your Honours, the paragraph beginning on the last three lines of 591 and continuing over to 592.

KIRBY J: What point does this go to?

MR GAGELER: The duty of a decision-maker extends, at 592B, to advising:

of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications, however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

That particular passage your Honour Justice Kirby may recall having adopted in Miah (2001) 206 CLR 57 at 117 as a correct general statement of the law applicable to this Tribunal.

GLEESON CJ: Have there been any cases that have discussed the question whether the rule in Browne v Dunn applies in inquisitorial proceedings?

MR GAGELER: The answer to that is yes, and the answer in those cases is no, as a rule, although in an extreme case it may give rise to it.

GLEESON CJ: Could you give us a reference to that, please, after the conclusion of the hearing today?

MR GAGELER: Yes, I will do that.

GLEESON CJ: I thought there were cases in which it had specifically been discussed.

MR GAGELER: The answer is yes, but I do not have them with me. Your Honours, I will give you a note on that. I will also find out the factual position in relation to the husband.

GLEESON CJ: Yes, if you and Mr Patel can make an agreement on what actually happened in relation to that factual matter, it will save us having to plough through the - - -

KIRBY J: There is a reference at the end of the first Tribunal's reasons, which you have in your compilation, which seemed to indicate that at that hearing there was a joint application, was there, by the former husband of the present applicant? That he had gone to Pakistan - - -

MR GAGELER: Yes, there was a joint - - -

KIRBY J: - - - and sent a letter supporting in some way the present applicant's case, but not on the issue of the rape, I assume, because that was not mentioned.

MR GAGELER: Well, the factual issue that we need to find out about is whether or not the husband was present during the hearing before the first Tribunal. I simply do not know what the answer to that is, but I will find out.

GLEESON CJ: It goes, as I understand it, to the question of whether that operated as an inhibition upon her making this claim before the first Tribunal.

KIRBY J: It is at page 117, 118 of the material - - -

MR GAGELER: Yes, as I understand it, it does not relate specifically to any of the particulars of the breach of the rules of natural justice, although it may be something that she could have spoken about if - - -

KIRBY J: It says:

The Applicant's husband did not make any specific claims about return to Pakistan, although his post-hearing letter indicated that his family and relatives might attempt to harm the Applicant -

and it says - this is on page 118:

the Tribunal is satisfied that the Applicant's spouse does not have a well-founded fear of persecution -

So it sounds as if both of them were before the Tribunal in some way.

MR GAGELER: We will find out and we will let you know. If the Court pleases.

GLEESON CJ: Thank you, Mr Gageler. Yes, Mr Patel.

MR PATEL: Your Honour, just a brief word - - -

KIRBY J: And his name is on the front cover, on page 104. The front cover of the first Tribunal's reasons.

MR PATEL: Your Honour, I want to refer to the particular interrogation when she was asked whether this was reported to the police. I have not got the reference here but I will just make a quick observation, your Honour, that this was raised in the context of - she was asked, "Do you have anything else?" and she just said, "Oh, we don't get protection from those who are supposed to protect us", and in response to that query he said, "Did you report this to the police?" So we submit that that question was asked not because he was testing her credibility but merely to say that, "Look, you're complaining about not getting any protection. Did you in fact do anything?"

So we would submit that that interrogation should be seen in that light rather than he was putting this question to test her credibility whether or not there is anything in her allegations about rape. Apart from those submissions, we do not have anything to add.

GLEESON CJ: Thank you, Mr Patel. We reserve our decision in this matter. We will adjourn until 10.00 am tomorrow.

AT 12.39 PM THE MATTER WAS ADJOURNED