That’s [potentially] incredible!

On a day when the Rudd government is due to announce a winding down of the Keating-Howard mandatory detention regime for asylum speakers, this curious section of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (UK) has just been read down:

8(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies.

(2) This section applies to any behaviour by the claimant that the deciding authority thinks – (a) is designed or likely to conceal information, (b) is designed or likely to mislead, or (c) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant.

The section goes on to require courts to require a variety of acts as fitting the requirements of sub-s(2), including failures to produce a passport, producing a valid passport, destroying a passport, destroying a ticket or not answering a question (all without reasonable excuse) or failing to make a claim for asylum at first reasonable opportunity. The Court observed that the section was brought in after the then Home Secretary, David Blunkett, stated his concern that potential asylum seekers were destroying their documents to prevent assessment of their real country of origin and to confound being deported.

The Court of Appeal in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 angsted about this section, which seemed to be telling courts how to find-facts, which they observed would be contrary to the ‘principle of legality’. I think that, assuming asylum claims are civil proceedings, a similar section in Victoria would be contrary to Charter s. 24(1):

24(1) A… party to a civil proceeding has the right to have the… proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

The difficulty for the Court was how far it could go in re-interpreting the section under the interpretation mandate. The Court duly cited the current House of Lords precedent on interpretation, Ghaidan v Godin-Mendozza, which ruled that re-interpretation must not contradict a statute’s ‘fundamental features.’

Lord Justice Pill duly rejected an argument that ‘shall’ should be interpreted to mean ‘may’, but accepted alternative arguments that ‘damaging’ should be read as having the word ‘potentially’ in front of it or that the entire phrase should be re-read as ‘when assessing any damage to the complainant’s credibility’. Pill’s fellow lords went with the first option. I’m a bit baffled as to why the latter two readings are more acceptable than the first one and, indeed, what ‘fundamental features’ of the statute have been respected by this re-reading. In Victoria, where our interpretation mandate is not meant to follow the wilds of the UK’s version, a declaration of inconsistent interpretation (assuming the Charter s. 7(2) test isn’t satisfied) would seem to be the appopriate response to a provision like this.

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