JT (Cameroon) v Secretary of State for the Home Department  EWCA Civ 878 (28 July 2008)
In a recent decision informed by the interpretive principle in s 3 of the Human Rights Act 1998 (UK), the England and Wales Court of Appeal has read an additional word into a provision of the Asylum & Immigration (Treatment of Claimants etc) Act 2004 (UK) to ensure human rights compatibility. Despite there being no ambiguity in the provision, the court was willing to read in the additional word so that the provision would not offend the separation of powers doctrine and, implicitly, the right to a fair hearing.
JT, a citizen of Cameroon, appealed against the Secretary of State's refusal of his application for asylum in the UK.
JT argued that, in assessing the credibility of his claims of persecution if he was returned to Cameroon, the Immigration Appeal Tribunal gave too much weight to a number of facts which were required to be taken into account by s 8 of the Asylum & Immigration Act. This section provides that, 'in determining whether to believe a statement made by… a person who makes an asylum claim…, a deciding authority shall take account, as damaging the claimant's credibility, of any behaviour to which this section applies' (emphasis added). The behaviours relied upon under s 8 in the refusal of JT's claim were his use of false travel documentation and two false identities, and the unexplained delay between his entry into the UK and the making of an asylum claim.
The court considered that s 8 may offend the right to a fair hearing and the doctrine of separation of powers, as it could be seen as Parliament dictating to the Tribunal how it should carry out a judicial function. In particular, the court was concerned that application of s 8 could distort the fact-finding exercise by requiring the listed matters to be given weight at the expense of other facts relevant to the assessment of an asylum application, and found that there was a real risk that such a distortion had occurred in JT's case.
In interpreting s 8, the court cited two cases regarding the construction of legislation under s 3 of the Human Rights Act: Ghaidan v Godin-Mendoza  AC 557 (in which the House of Lords held that, under the Human Rights Act, a court can construe a provision consistently with human rights provided it does not adopt a meaning 'inconsistent with a fundamental feature of legislation') and R v Secretary of State for the Home Department; Ex parte Simms  2 AC 115.
The court refused to read s 8 as providing that the authority 'may' (rather than 'shall') take account of the behaviours listed in the section. The court referred to the need to respect the Parliament's sovereignty, and the fact that s 8 was enacted to ensure that the listed matters would be considered in a systematic and transparent fashion when determining an applicant's credibility.
However, the court found that s 8 could be read as requiring an authority to take account of the listed behaviours as potentially damaging the claimant's credibility. On this reading, the court considered that the section would not offend constitutional principles, as the decision-maker could decide for itself the weight that should be given to the s 8 matters in assessing the claimant's credibility. Section 8 would not, on this construction, dictate the damage to the applicant's credibility resulting from one of the listed behaviours having occurred.
Relevance to the Victorian Charter
Although in this case the court did not apply the interpretive principle in s 3 of the Human Rights Act, it was informed by case law applying that principle. The court did not explicitly refer to any human rights with which s 8 of the Asylum & Immigration Act may have been incompatible, although arguably such a provision may be incompatible with the right to a fair trial.
This decision is an example of a legal principle being used to construe legislation even where there is no apparent ambiguity in the provision. It adds to existing UK authority favouring a broad approach to interpreting statutes so that they are compatible with human rights. A similar approach was also taken by the ACT Court of Appeal in Capital Property Projects (ACT) Pty Ltd v ACTPLA  ACTCA 9.
Arguably the approach in Victoria may be narrower than this UK approach. In Victoria, legislation need only be 'interpreted' consistently with human rights, whereas the UK legislation uses the potentially broader 'read and given effect to' (although 'interpreted' is also used in the ACT). In the absence of clear Victorian authority to date, it remains unclear how far courts will be willing to go in applying s 32 of the Charter and whether they will be willing to read in additional words where the provision does not appear to be ambiguous on its face.
The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2008/878.html.
Nicole Reid is a lawyer with Minter Ellison