FEDERAL COURT OF AUSTRALIA
Habib v Director-General of Security [2009] FCAFC 48
ADMINISTRATIVE LAW – natural justice – whether Tribunal obliged to disclose adverse inferences drawn from giving of false evidence by the applicant and his wife – whether part of Tribunal’s reasoning process – whether a critical issue or factor – whether obviously open on known material – whether inferences sufficiently raised in exchange between Tribunal and respondents
Administrative Appeals Tribunal Act 1975 (Cth) s 33 Australian Passports Act 2005 (Cth) s 14 Australian Security Intelligence Organisation Act 1979 (Cth)
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 applied Edwards v The Queen (1993) 178 CLR 193 referred to Lidono Pty Ltd v Commissioner of Taxation (2002) 191 ALR 328 distinguished Re Refugee Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 applied SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301 distinguished Stead v State Government Insurance Commission (1986) 161 CLR 141 applied VBAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1288 distinguished
MAMDOUH HABIB v DIRECTOR-GENERAL OF SECURITY NSD 2303 of 2007
MAMDOUH HABIB v MINISTER FOR FOREIGN AFFAIRS AND TRADE NSD 1039 of 2008
BLACK CJ, RYAN AND LANDER JJ 24 APRIL 2009 MELBOURNE (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2303 of 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY JUSTICE DOWNES, PRESIDENT, MS N BELL, SENIOR MEMBER AND MS R HUNT, SENIOR MEMBER
BETWEEN: MAMDOUH HABIB Applicant
AND: DIRECTOR-GENERAL OF SECURITY Respondent
JUDGES: BLACK CJ, RYAN AND LANDER JJ DATE OF ORDER: 24 APRIL 2009 WHERE MADE: MELBOURNE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1039 of 2008
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY JUSTICE DOWNES, PRESIDENT, MS N BELL, SENIOR MEMBER AND MS R HUNT, SENIOR MEMBER
BETWEEN: MAMDOUH HABIB Applicant
AND: MINISTER FOR FOREIGN AFFAIRS AND TRADE Respondent
JUDGES: BLACK CJ, RYAN and LANDER JJ DATE OF ORDER: 24 APRIL 2009 WHERE MADE: MELBOURNE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2303 of 2007
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY JUSTICE DOWNES, PRESIDENT, MS N BELL, SENIOR MEMBER AND MS R HUNT, SENIOR MEMBER
BETWEEN: MAMDOUH HABIB Applicant
AND: DIRECTOR-GENERAL OF SECURITY Respondent
NSD 1039 of 2008 BETWEEN: MAMDOUH HABIB Applicant
AND: MINISTER FOR FOREIGN AFFAIRS AND TRADE Respondent
JUDGES: BLACK CJ, RYAN and LANDER JJ DATE OF ORDER: 24 APRIL 2009 WHERE MADE: MELBOURNE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
THE COURT:
1 These proceedings concern two applications by way of appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”), sitting in both its General Administrative Division (NSD 1039/2008) and its Security Appeals Division (NSD 2303/2007). The decision was handed down on 1 November 2007 and affirmed a decision of the respondent in NSD 1039/2008, the Minister for Foreign Affairs and Trade (“the Minister”), to refuse an application by the applicant, Mr Habib, for the issue to him of a fresh Australian passport. The Minister’s decision had been based on an adverse security assessment made by the Australian Security Intelligence Organisation (“ASIO”). Pursuant to s 54 of the Australian
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Security Intelligence Organisation Act 1979 (Cth) (“ASIO Act”), the applicant also sought a review by the Tribunal of the adverse security assessment. The Director-General of Security was named as respondent in NSD 2303/2007 in accordance with s 39A of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). The Tribunal also affirmed the adverse security assessment.
Background
2 The applicant is an Australian citizen who was born in Egypt. In early October 2001 he was detained in Pakistan as a suspected terrorist. After being held in Egypt and, for a short time, at the United States’ Bagram Airforce base in Afghanistan, he was, in May 2002, transferred to the United States’ detention facility at Guantanamo Bay in Cuba. He was eventually released in 2005 without any charges having been laid against him and returned to Australia where he was notified that the Minister had cancelled his Australian passport. Later, on 28 November 2006, the Minister refused, under s 14(2) of the Australian Passports Act 2005 (Cth) (“the Passports Act”), to issue the applicant with a fresh passport.
3 The Tribunal in its reasons expressed disquiet about the treatment to which the applicant claimed to have been subjected during the period of his detention, noting that it was common ground that, when interviewed at Guantanamo Bay by representatives of the Department of Foreign Affairs and Trade, ASIO and the Australian Federal Police, he had been manacled and shackled, with the manacles and shackles linked by a chain around his waist which extended to the floor to which it was fixed: Re Mamdouh Habib and Minister for Foreign Affairs and Trade; Re Mamdouh Habib and Director-General of Security [2007] AATA 1908 at [4].
4 After acknowledging that it was not bound by the rules of evidence, the Tribunal went on at [6] of its reasons to make these observations about the weight to be given to confessional statements made by the applicant during his detention overseas:
However, we must determine what weight should be given to the statements which are relied upon, having regard both to the circumstances of the interviews in which they were made and the whole surrounding circumstance of the prior treatment of Mr Habib. Although the exclusionary rules of evidence relating to confessions do not apply, we must have regard to the fact that an important underlying principle supporting those rules is that anything which undermines the voluntariness of a confession also undermines its reliability. Counsel representing the respondents has
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not been able to find any authorities dealing with the use of admissions before administrative review tribunals. In the circumstances we think it is a matter for wise discretionary decision-making. We must make the preferable decision about whether to give weight, and if so, what weight, to the material before us. To undertake that task we must consider the circumstances of the interviews as well as their content and context together with other relevant material.
5 The Tribunal then noted that the evidence disclosed various activities in which Mr Habib had engaged which indicated contact with individuals and support for an organisation, Lashkar-e-Tayyiba (“L-e-T”), which was antithetical to the interests of Australia. It was acknowledged that all those activities had occurred in or before 2001 which was said, at [8], to give rise to a question:
… as to what relevance it has today. Mr Habib has undergone a number of experiences since that time which may have made him a changed man. It is also important to remember that these activities preceded the invasion of Afghanistan and Iraq. Conditions were not the same as they are now.
6 The Tribunal then, in a passage which is central to the present appeal, indicated the use that it considered could be made of certain untruths that it found had been told by Mr Habib and his wife (at [9]-[10]):
9. The problem is that both Mr and Mrs Habib did not always tell the truth in their evidence about Mr Habib’s activities. They denied knowledge of the notebook. They denied that it was found at their home. They denied that Mr Habib sent e-mails or that Mrs Habib or someone else sent them on his behalf. The evidence comfortably satisfies us that both claims are true. What is one to do with these circumstances? First, it means we must be very careful about accepting uncorroborated evidence of Mr and Mrs Habib. Secondly, it leads to a questioning of the motives of Mr and Mrs Habib. The explanation for their not telling the truth may have been that, although Mr Habib has no present intentions of engaging in any activity overseas prejudicial to the security of Australia or a foreign country, they thought that the earlier conduct might of itself be sufficiently adverse to warrant passport cancellation. However, we think it is more than that. We conclude that the failure of Mr and Mrs Habib to tell the truth leads to an inference that Mr Habib has the same sentiments and intentions now that he had prior to 2001. 10. Mr Habib might have acknowledged his past conduct and explained that he is now a different man. In the absence of any evidence of present inculpatory conduct that might make out a reasonable case for the granting of a passport. It might still be possible for Mr Habib to make such a claim. If genuinely made, it might lead to the restoration of his passport in the future. However, Mr Habib has not put his case this way. We must deal with the case as put. Unfortunately, we find that it involved Mr Habib not telling the truth about matters of concern from the past. That has the effect of making Mr Habib’s past conduct relevant today. It is broadly on this basis that we find that Mr Habib should not have an Australian passport.
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7 Although disposed to exercise caution in the uses which could be made of statements by Mr Habib in the course of the interviews in Pakistan and at Guantanamo Bay, the Tribunal explained at [14] of its reasons its recourse to those statements:
14. Had we found that Mr Habib was a truthful witness we would have been less inclined to place weight on the interview. However, Mr Habib’s decision not to assist the Tribunal fully means we must look elsewhere for evidence of the truth. When we look at the transcript of the interview it shows that Mr Habib was generally not asked leading questions but invited to give his own version of events. Again and again he volunteered information which could not have been put into his mind by his questioners. He recounted facts and events with surprising detail. To us they seem unlikely to have been invented in the hope of a reward or to avoid punishment because they have the “ring of truth” about them. When asked about the notebook and shown photocopies of its pages, Mr Habib gave a clear exposition of its contents. He did the same with the e-mails he told us were not his. 15. In the circumstances, we find that the interviews provide corroboration of findings which we base primarily on his e-mails and telephone conversations as well as his evidence before us.
8 The first provision under which the Tribunal was required to arrive at its decision was s 14 of the Passports Act which, so far as is relevant, provides;
(1) If a competent authority suspects on reasonable grounds that: (a) if an Australian passport were issued to a person, the person would be likely to engage in conduct that: (i) might prejudice the security of Australia or a foreign country; or (ii) might endanger the health or physical safety of other persons (whether in Australia or a foreign country); or (iii) might interfere with the rights or freedoms of other persons (whether in Australia or a foreign country) set out in the International Covenant on Civil and Political Rights; or (iv) might constitute an indictable offence against this Act; or (v) might constitute an indictable offence against a law of the Commonwealth, being an offence specified in a Minister’s determination; and (b) the person should be refused an Australian passport in order to prevent the person from engaging in the conduct; the competent authority may make a refusal/cancellation request in relation to the person. Note 1: The text of the International Covenant on Civil and Political Rights is set out in Australian Treaty Series 1980 No. 23. In 2005 this was available in the
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Australian Treaties Library of the Department of Foreign Affairs and Trade, accessible on the Internet through that Department’s world-wide web site. Note 2: See also Subdivision D. (2) If a competent authority makes a request under subsection (1), the Minister may refuse to issue the person an Australian passport.
9 It was pursuant to a request by ASIO as a competent authority that the Minister had refused to issue a fresh passport to Mr Habib.
10 The Tribunal identified at [20] of its reasons the following elements which it regarded as required by the legislation to support a refusal:
1. Suspicion; 2. On reasonable grounds; 3. That a person would be likely to engage in conduct; 4. Which might prejudice the security of Australia or a foreign country. (Emphasis in original.)
11 The Tribunal went on to note in the same context:
The Explanatory Memorandum accompanying the bill for the Passports Act stated that “likely” had the meaning “a real, and not remote, possibility” rather than more likely than not. Although the Tribunal has earlier expressed doubt as to which of the two meanings are to be given to the word, the Explanatory Memorandum, understood as the basis upon which the Parliament voted on the bill, must be seen to have resolved this issue in favour of the real possibility test.
12 We do not necessarily agree that the word “likely” in s 14(1) of the Passports Act is to be interpreted in the way there suggested by the Tribunal. However, the point has not been raised by the grounds which have been pressed on the hearing of the application so we refrain from saying anything further about it.
13 Section 37 of the the ASIO Act provides a facility for the making by ASIO of security assessments and, by subs (2), stipulates in respect of an adverse or qualified security assessment:
(2) An adverse or qualified security assessment shall be accompanied by a statement of the grounds for the assessment, and that statement: (a) shall contain all information that has been relied on by the Organisation in making the assessment, other than information the
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inclusion of which would, in the opinion of the Director-General, be contrary to the requirements of security; and (b) shall, for the purposes of this Part, be deemed to be part of the assessment.
14 By s 54 of the ASIO Act, applications may be made to the Tribunal for review of adverse or qualified security assessments and s 61 gives the following effect to the findings of the Tribunal that do not confirm ASIO’s assessment:
Where an assessment has been reviewed by the Tribunal, every Commonwealth agency concerned with prescribed administrative action to which the assessment is relevant, and any tribunal, person or authority having power to hear appeals from, or to review, a decision with respect to any prescribed administrative action to which the assessment is relevant, shall treat the findings of the Tribunal, to the extent that they do not confirm the assessment, as superseding that assessment.
15 Where the Tribunal has been called on to review a security assessment, it is required by s 43AAA(2) of the AAT Act to make and record its findings in relation thereto. Those findings, by force of the same sub-section:
… may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the assessment.
16 Section 43AAA(3) then provides:
The Tribunal must not make findings in relation to an assessment that would, under section 61 of the Australian Security Intelligence Organisation Act 1979, have the effect of superseding any information that is, under subsection 37(2) of that Act, taken to be part of the assessment unless those findings state that, in the Tribunal’s opinion, the information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security.
17 The ASIO security assessment of Mr Habib on which the recommendation to the Minister was based incorporated nine grounds which, as summarised by the Tribunal at [28] of its reasons, concerned allegations that Mr Habib:
(a) received telephone calls from and knew all of the conspirators in the 1993 World Trade Centre bombing; (b) expressed support for Usama Bin Laden and for the 1998 bombing of US embassies in East Africa; (c) had in his possession material, including e-mails, letters, address books and
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note books, seized from his home in a search in September 2001, that showed an interest in developing connections with extremists abroad, together with handwritten notes and drawings describing firearms and mortar training; (d) said, in an interview in Guantanamo Bay with ASIO and Australian Federal Police agents on 15 May 2002, that he had written e-mails saying he wanted to be a jihad fighter; that he visited training camps in Afghanistan in March to May 2000 and August to October 2001 and that he was at an al-Qa’ida “Information Course” in Kabul in 2001. In particular, he said he had attended a Lashkar-e-Tayyiba training camp north of Lahore, Pakistan in early 2000 and, when shown a copy of a notebook, alleged to have been seized from his house, detailing some of the training undertaken at the camp, confirmed the notes were his handwriting but possibly transcribed from other exercise books he found at the L-e-T premises; and (e) in the same interview on 15 May 2002, said that on 11 September 2001 he overheard two senior al-Qa’ida members discussing a “hit on America”.
18 The Tribunal also noted at [30] of its reasons the following main evidentiary bases of ASIO’s adverse security assessment of Mr Habib:
(a) eight ASIO and AFP interviews with Mr Habib since 2001 - three in Pakistan and five in Guantanamo Bay. The respondents rely most significantly on the interview at Guantanamo Bay on 15 May 2002; (b) a notebook said to have been seized in a search of Mr Habib’s home in September 2001. The notes and diagrams in the notebook are alleged to be in Mr Habib’s handwriting; (c) e-mails and transcriptions of e-mails alleged to have been obtained from Mr Habib’s seized home computer; and (d) transcripts of intercepted telephone conversations on 15 and 29 September 2001 and 4 October 2001.
19 Against that background, the Tribunal noted that Mr Habib had challenged each of the grounds articulated by ASIO and most of the evidence on which they were based. Those challenges were seen (at [34]) as raising three issues:
1. The reliability of Mr Habib’s evidence; 2. The authenticity of the e-mails, transcripts of telephone calls and notebook; and 3. The weight that should be given to the admissions and concessions he is said to have made in the interviews.
20 In relation to the first of those issues, the Tribunal concluded, at [37]-[38] of its reasons:
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37. Mr Habib’s credibility is cast into doubt by his evidence that he sent none of the e-mails, nor had them sent on his behalf, that the telephone conversations attributed to him did not take place or did not take place as transcribed and that the notebook is not his. Mrs Habib’s credibility is damaged by her evidence that the notebook was not seized from her house, that Mr Habib never sent or received any e- mails and that the telephone conversations did not take place as transcribed. 38. There is abundant evidence to the contrary in the documents before us and from ASIO officers, AFP agents and Mr Habib’s own witness, Mr Tarek Dergoul.
21 The Tribunal then explained why it did not accept the evidence of either Mr Habib or his wife in relation to the e-mails or the notebook and concluded, at [47] of its reasons, in relation to the evidence directed to those matters:
These untruths make us wary of Mr and Mrs Habib’s uncorroborated evidence. We consider that where their evidence conflicts with that of the respondents and there is no other evidence to support their version of events, we must prefer the evidence of the respondents.
22 The Tribunal next considered the authenticity of the e-mails, transcripts of telephone conversations and the notebook. Although it noted evidentiary deficiencies about the recovery of the text of the e-mails from the hard-drive of the applicant’s computer, the Tribunal expressed itself as satisfied that the e-mails were authentic. It also accepted that telephone conversations between Mr Habib and his wife had been correctly recorded and that an English translation of the conversations as contained in a transcript in evidence was accurate. The findings in relation to the transcripts were made despite Mr Habib’s having disputed the date on which the most critical conversation had occurred and Mrs Habib’s taking issue with certain details of the interpreter’s version of the same conversation. Similarly, the Tribunal was satisfied that “the notebook is authentic and contains much of Mr Habib’s handwriting, even though not all of it may be his” (at [57]).
23 The Tribunal then turned to consider the weight to be given to the admissions which had been made by Mr Habib in the course of interviews in Pakistan and Afghanistan. It noted that there was no evidence to contradict Mr Habib’s account of the treatment to which he had been subjected successively in Pakistan, Egypt and Guantanamo Bay. The Tribunal noted his description of physical and psychological abuse which it considered “could only be described as torture” (at [60]). Despite that characterisation of the general treatment meted out to Mr Habib, the Tribunal concluded that, for its purposes, some weight could be attached to
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statements made by him in the course of an interview or interrogation conducted at Guantanamo Bay on 15 May 2002. The degree of weight which the Tribunal accorded to statements made in the course of that interview and the reasons for giving them any weight at all are explained in this passage from the Tribunal’s reasons (at [76]-[81]):
76. We are conscious that certain inducements appear to have been held out to Mr Habib during the course of some interviews. For example, in the interview at Guantanamo Bay on 15 May 2002 Mr Habib was told: We urge you to co-operate with us and help, help us to help you.
77. He was also offered cigarettes and drinks, with unknown frequency. These things must affect the voluntariness of at least some aspects of the answers given in the interviews. 78. Balanced against this is the apparent readiness with which Mr Habib gave his answers in the interview, the unprompted detail he provided and the neutrality of the questions asked. Mr Habib’s admissions were peppered with denials and qualifications. His recollection of details of names, conversations and even some dates was surprisingly clear, given the surrounding circumstances. In many instances, open questions were met with lengthy and detailed responses. 79. The transcript of the interview on 15 May 2002 does not read like an interrogation of a man cowed by fear or otherwise, or anxious to secure favour. 80. We are also troubled by Mr Habib’s untruthfulness in his evidence to the Tribunal in his blanket denials about the e-mails, telephone conversations and notebook, all of which are canvassed in the 15 May interview – and many aspects of which are admitted by him in the interview. 81 Taking into account the circumstances in which the interviews were conducted, the treatment Mr Habib may have suffered at the hands of his detainers, the questions asked and the nature of the responses given and the unreliability of Mr Habib’s evidence to the Tribunal, we resolve to treat the admissions made in the interviews as the least reliable plank of the respondents’ evidence and to have recourse to them primarily, but not exclusively, where they corroborate other evidence. We will exercise care wherever we do rely on them. We add that we have no such concerns in relation to the interviews that were conducted with Mr Habib prior to his detention in Pakistan.
24 The Tribunal then proceeded to examine each of the grounds set out in the ASIO security assessment and to consider whether it was supported by the evidence. It was satisfied that the evidence supported the first of those grounds directed to whether Mr Habib had made contact with conspirators implicated in the bombing of the World Trade Centre in 1993. However, the Tribunal added, in respect of this ground, that “nothing before us suggests Mr Habib was in any way implicated in the planning or execution of the bombing” (at [86]). In making its findings on this ground, the Tribunal did not rely at all on any false denials or untruthful evidence by Mr Habib or his wife.
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25 In relation to Mr Habib’s alleged support for Usama bin Laden, the Tribunal relied principally on the transcript of the telephone conversation between Mr Habib and his wife which is referred to at [22] above. That conversation was said to have occurred on 15 September 2001, four days after the terrorist attack on the United States. Mr Habib was recorded as saying “What I’ve told you was exactly right/done perfectly wasn’t it?” and as referring twice to “lovely scenes”. The Tribunal concluded on this aspect of the security assessment (at [89]-[90]):
…We are left in no doubt about Mr Habib’s sympathies at that time. 90. Given Mr and Mrs Habib’s untruthfulness to the Tribunal in a number of important respects we do not think it is available to them to argue that, now, Mr Habib no longer holds those extreme views. We infer that they were motivated to be untruthful by the fact that Mr Habib continues to hold those views. We find that Mr Habib supports Usama Bin Laden.
26 On the issue of Mr Habib’s interest in developing connections with extremists, the Tribunal had regard to e-mails which it found to have been written by, or on behalf of, Mr Habib from Mrs Habib’s e-mail address. Some of the “sentiments and intentions” expressed in those e-mails were found to have been corroborated by many of the answers which Mr Habib had given in the interview at Guantanamo Bay on 15 May 2002. The Tribunal also derived support for its acceptance of this ground of the adverse security report from the notebook referred to at [18(b)] above and the transcript of the telephone conversation of 26 September 2001 between Mr and Mrs Habib about that notebook. There was no reliance, in relation to this ground, on the falsity of denials or other evidence given to the Tribunal by Mr Habib or his wife.
27 The Tribunal also accepted that Mr Habib had attended an L-e-T training course in 2000. It based that acceptance on certain statements by Mr Habib and e-mails from Mrs Habib’s e-mail address to the “Dawa Center” which the Tribunal found was “L-e-T affiliated” and a Tahir Rabbani whom Mr Habib had acknowledged in the 15 May 2002 interview to have been “in charge of the L-e-T”. The Tribunal also drew on the notebook described at [18(b)] above and a transcript of the telephone conversation between Mr and Mrs Habib on 26 September 2001 in relation to that notebook. In those respects, the Tribunal concluded, at [98]-[99] of its reasons:
98. This conversation, which was mostly in Arabic, suggests that a notebook of
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the kind seized from Mr Habib’s house was in fact his, related to some study done by Mr Habib and that its seizure was a matter of considerable concern to Mrs Habib. 99. We find, on the basis of this evidence considered together, that Mr Habib had an interest in developing connections with extremists abroad.
28 As to the alleged attendance of Mr Habib at L-e-T training camps and al-Qa’ida information courses, the Tribunal relied on much the same evidence as is summarised at [26]- [27] above. It noted Mr Habib’s acceptance in cross-examination that L-e-T was a part of Markaz-ud-Dawa and that the e-mail described at [101] of the Tribunal’s reasons had been addressed to “dawacenter.” It also referred to Mr Habib’s reply in answer to a question in the course of the interview of 15 May 2002 that Tahir Rabbani was in charge of L-e-T and that they called themselves mujahadeen. As well, the Tribunal relied on Mr Habib’s alleged admission in the same interview that he had obtained from L-e-T the notebook described at [18(b)] above and that there had been at the L-e-T premises weapons and books and some people studying and he had made some notes about weapons in the book he found there. This evidence satisfied the Tribunal that Mr Habib had attended an L-e-T training course in 2000.
29 The Tribunal found that accounts which Mr Habib gave to the Tribunal about his presence in Afghanistan in 2001 were confused and inconsistent with statements which he had made in the course of the interview at Guantanamo Bay on 15 May 2002. It seemed to regard the latter statements as more likely to have been true and concluded, at [115] of its reasons:
We find that a course, possibly run by al-Qa’ida, was being conducted at the guesthouse while Mr Habib was there. We also find that he took part in some aspects of it.
30 The Tribunal also relied on the conclusion just quoted and the evidence on which it was based to find, at [116] of its reasons, that “there is evidence to support the ground that, on 11 September 2001, Mr Habib was in the proximity of senior al-Qa’ida members”. However, the Tribunal expressly declined to find that Mr Habib had prior knowledge of, or had been implicated in, the 11 September attack. The Tribunal did not refer, in relation to its conclusion on Mr Habib’s alleged attendance at L-e-T training camps or al-Qa’ida information courses or his proximity to senior al-Qa’ida members, to the false denials or
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untruthful evidence which it found to have been given to the Tribunal by Mr Habib or his wife.
31 The Tribunal, in conclusion, referred to the assessment of the Director-General of Security that, were Mr Habib to travel overseas, he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country. The conduct which the Director-General had imputed to Mr Habib was “associating with or supporting a terrorist organisation, including participating in acts of politically motivated violence, or preparation for such acts” (at [118]). The Tribunal found the Director-General’s opinion to be sound. Although it acknowledged at [119] that considerable time had passed since Mr Habib’s activities before his detention in 2001:
It would have been available to him to argue that he no longer has an interest in armed struggle or in developing connections with extremists overseas, that all the time that has passed and his experiences since then make his pre-2001 activities, and the sentiments he expressed then, irrelevant to the question of what threat he would pose now, were he to travel overseas. Had that argument been made to us and had Mr Habib been a truthful witness, we would have given close and sympathetic consideration to it.
32 Although it did not consider that the argument suggested in that passage had been relied on by Mr Habib, the Tribunal apparently regarded it as unlikely to have been persuasive had it been advanced. It concluded, at [120]-[122] of its reasons:
120. However, the clear incredibility of Mr and Mrs Habib’s evidence to the Tribunal in relation to the e-mails, their telephone conversations and the notebook make us doubt their evidence in other respects. We do not believe that Mr Habib has discarded or modified the views he had at that time or that he no longer harbours a desire to join in the type of jihad described in the e-mails he, or his wife on his behalf, wrote. In the context of the matters with which we are concerned in these applications, we are drawn to the conclusion that Mr Habib concealed the truth when he gave evidence because he wished to conceal his current sympathies and intentions. 121. The grounds that we have found to be supported by the evidence stand unaffected. Their significance to the question of whether Mr Habib might associate with or support a terrorist organisation or whether he might participate in or prepare for acts of politically motivated violence if he were to travel abroad has not been diminished by any evidence or argument put forward by him. We find the assessment of the Director-General to be well grounded and correct. Did the Minister make the correct or preferable assessment? 122. Having reached this conclusion, it follows that we find that there are, in the event that Mr Habib was granted a passport and travelled outside Australia, reasonable grounds to suspect that he would be likely to engage in conduct which might prejudice the security of Australia or a foreign country.
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The applicant’s submissions
33 On appeal, Mr Beech-Jones SC who appeared with Mr C A Evatt and Mr W B Nicholson of Counsel for Mr Habib contended that the Tribunal’s decision had been attended by a denial of procedural fairness. There was no dispute that the credibility of Mr Habib and his wife had been firmly in issue before the Tribunal. However, it was submitted, the Tribunal had erred in failing to disclose its intention to use its finding, that Mr Habib and his wife had given false evidence in the proceedings, as positive evidence (and not just as a step in the reasoning process that led the Tribunal to accept the Minister’s evidence) that, at the time of the hearing, Mr Habib still held the same extremist sentiments which it was accepted he had held before 2001. The applicant submitted further that, to the extent that the potential use of the false evidence was raised in the respondents’ closing submissions (as outlined below at [36]), it was not commensurate with the extent of the inference finally drawn by the Tribunal and it said nothing about the potential use of Mrs Habib’s evidence.
34 Mrs Habib had given evidence to the Tribunal on two occasions. On the first occasion, she tendered a witness statement and gave oral evidence in chief disputing ASIO’s minute of the telephone conversation she was said to have held with her husband on 15 September 2001. She was not cross-examined. Mrs Habib was later called to give evidence on a second occasion, during which she denied that either she or her husband had sent the emails said to have been retrieved from the family computer, and that the notebook referred to at [18(b)] above had been seized by ASIO from their house. She was then cross-examined by Counsel for the Minister, who later submitted to the Tribunal, as recorded at p 1441 of the transcript:
We say Mrs Habib’s claim that she did not send the two incriminating emails in question should not be accepted in light of three things. Firstly, the fact that her evidence about this only came to light on the third attempt she had at giving evidence after we say the President made it extremely clear that Mr Habib would have great difficulty winning his case if she did not give evidence about this. The President, in our submission, made it abundantly clear to the Habibs that any evidence they wish to rely upon, whether from Mrs Habib or anyone else, needed to be in a statement.
35 It was not suggested to Mrs Habib, either by Counsel for the Minister or the Tribunal, that the falsity of her evidence was part of some plan or arrangement she had with her
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husband to conceal her husband’s extremist views and the applicant was not put on notice that Mrs Habib’s false evidence would be used as positive evidence against him.
36 By contrast, Counsel for the Minister had alluded in his submissions to the potential use by the Tribunal of Mr Habib’s untruthful evidence as raising a “consciousness of guilt”. Mr Beech-Jones referred to the following passage of the transcript, at p 1388;
HIS HONOUR: What is the significance of the fact that he lied? I mean there must be people who don’t tell the truth who have passports. MR BERGER: The significance is twofold, President. One is that his evidence about other matters should not be accepted without credible corroborative evidence, and secondly, that it reflects upon whether he still poses a threat if he was to go overseas… …this is a person who has consistently, deliberately maintained that he had nothing to do with those emails whatsoever and that must in my submission cause the Tribunal very real concerns about whether he still continues to have the views expressed in the emails, still continues to have anti-western views, still continues to have extremist views and the like, because failing to concede that he wrote them one would ask, why would he do that unless he was trying to mislead the Tribunal and that reflects extremely poorly on what the applicant says to the Tribunal about other aspects of the case about the emails themselves and about his intentions if he was to travel overseas …
At p 1439 of the transcript, Counsel for the Minister submitted further that:
We say the fact that the applicant has advanced what is a blatantly false reason why the respondent’s evidence should not be accepted is without more sufficient for the Tribunal to be satisfied that what the respondent has said about these emails is not incorrect. One would ask rhetorically why somebody would advance such a false justification for the statement of grounds being incorrect unless it demonstrated a consciousness of guilt.
37 However, Mr Beech-Jones contended that these statements were not sufficient to displace the obligation on the Tribunal to raise with Mr Habib the potential use of his untruthful evidence as positive evidence that he might prejudice the security of Australia or a foreign country. He contended, first, that such an obligation existed because the use of Mr Habib’s false denials and untruthful evidence as positive evidence involved a series of steps in a reasoning process which would not be obvious to the hypothetical reasonable
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observer of the proceedings. In Edwards v The Queen (1993) 178 CLR 193 at 210-211, Deane, Dawson and Gaudron JJ explained that:
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest.
38 Using as guidelines the instructions the High Court has held should be given to a jury considering a “lie”, Counsel for Mr Habib submitted that the Tribunal had been under an obligation to:
(a) identify with precision the “lie” in question;
(b) satisfy itself that the “lie” revealed that the applicant knew that, if he were to admit the “truth”, it would reveal that he continued to be a risk of danger to Australia or a foreign country; and
(c) satisfy itself that there were no other reasons for the “lie” having been told.
39 Such a cautious approach was necessary, it was said, because a lie can be told for many reasons, aside from the realisation of guilt. Lies can be “told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence”: Edwards 178 CLR 193 at 211.
40 Secondly, with respect to Mrs Habib’s evidence, Mr Beech-Jones submitted that the mere fact that a person’s spouse is found to have given false evidence cannot be taken as positive evidence that the person continues to hold “mischievous views and dangerous intentions”. That could only be so if the person and the spouse were found to have conspired to provide false evidence and that some aspect of the conspiracy involved an appreciation by both parties that the true position was that the dangerous views were still held. According to Counsel for Mr Habib, no suggestion of this kind had been raised or explored in the Tribunal proceedings.
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41 Counsel invoked several authorities to support an obligation of disclosure regarding the proposed use of Mr and Mrs Habib’s evidence. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, the Full Court held, at 592, that procedural fairness requires:
… the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.
42 In Marelic v Comcare (1993) 47 FCR 437, Beazley J held, at 443, that the Tribunal had failed to afford procedural fairness where it had decided a matter by reference to an issue (that the applicant had feigned or exaggerated her symptoms) which had not been raised during cross-examination and had been expressly disavowed in submissions. Similarly, in Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304, the members of the Court of Appeal agreed that, where a court makes its own observations of witnesses outside of the witness-box, and those observations have a significant influence on its decision, counsel should be informed and given an opportunity to respond: at 314-315 (per Kirby P); 324 (per Clarke JA); 325 (per Hope A-JA, agreeing). Only Kirby P went so far as to say that the trial judge’s failure to disclose the observations which he had made of the plaintiff in the precincts of the court resulted in a denial of natural justice (at 316-319).
43 According to Counsel for Mr Habib, these cases demonstrate that where a party is unable to deduce, from the manner in which the hearing before the Tribunal is conducted, including the cross-examination and the submissions that are made, that a particular matter is in issue, the Tribunal has an obligation to raise the matter with that party. It was submitted that, on the material available, it would not have been obvious to Mr Habib that his untruthful evidence could be taken as positively supportive of the Minister’s contention that he was an ongoing security risk. Further, it was argued, the use of Mrs Habib’s evidence to make a finding to that effect was even more “remarkable and extreme”.
44 In Smith v New South Wales Bar Association (1992) 176 CLR 256, Brennan, Dawson, Toohey and Gaudron JJ held that the New South Wales Court of Appeal had not afforded a barrister natural justice when it denied him a specific opportunity to be heard in relation to a finding that he had lied in a disciplinary hearing before the Court in circumstances where that
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finding would impinge on the sanction to be imposed (at 269). According to Counsel for Mr Habib, Smith demonstrates that a specific warning may need to be given where the fact that a person lied in giving evidence is to be used against that person beyond the mere rejection of that person’s evidence and the acceptance of the opposing party’s evidence.
45 It was submitted further that the mere making of a submission by Counsel for the Minister about a “consciousness of guilt” was not sufficient to afford the applicant procedural fairness in relation to the use that the Tribunal subsequently made of his evidence because the Tribunal had “amplified and reshaped the submission”. In particular, by its decision, the Tribunal had gone further than the respondents’ submissions by identifying the “lies” which were said to exhibit a consciousness of guilt. While the respondents had only referred to Mr Habib’s denials in relation to the incriminating emails, the Tribunal’s decision also referred to his denials in relation to the notebook (at [9]) and the fact that Mr and Mrs Habib were untruthful “in a number of important respects” (at [90]). The respondents’ submissions did not identify the particular facts that were said to demonstrate Mr Habib’s “guilt”, whereas the Tribunal did, and also rejected potential alternative explanations for any such “lies” (at [9]). In any event, Counsel contended, the respondents’ submissions did not refer to Mrs Habib’s evidence at all.
46 Mr Beech-Jones contended that Lidono Pty Ltd v Commissioner of Taxation (2002) 191 ALR 328 and the other authorities relied upon by the Minister should be distinguished for two reasons. At [5]-[6] of the applicant’s written submissions in reply it was contended, first, that “Lidono … was merely an example of the Tribunal rejecting an Applicant’s case; this was an example of a positive case being mounted against the Applicant which required that the facts, matters and circumstances raised against him be disclosed” and, secondly, that in Lidono “the only significance of the evidence being found to be false was that the relevant witness’s contention that a fact or event happened was not accepted. … In this case the ‘false’ evidence was used to support the contrary proposition to what the Applicant and his wife were asserting”.
47 Finally, Mr Beech-Jones submitted that, if the potential use of the Habibs’ evidence had been raised with Mr Habib, it would have altered the outcome of the Tribunal hearing because there were a number of alternative explanations which may have been given in
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response, either by Mr Habib himself or Mr Roy Barnes, who assisted him at the hearing. For example:
… there was the explanation raised by the Tribunal itself namely that they both may have wanted the Applicant to succeed in the application. Alternatively it could have been submitted that, in light of his appalling experiences in detention, the Applicant may have convinced himself that the earlier events did not happen and his wife may have determined to support him no matter what. … Be that as it is, the overall result was that the hearing was unfair.
48 Counsel for Mr Habib therefore sought an order that the matter be remitted to the Tribunal to be determined according to law.
The respondents’ submissions
49 Mr Berger of Counsel for the Minister submitted that Mr Habib had not been denied natural justice by the Tribunal’s failure to put him on notice that his and his wife’s failure to tell the truth might lead the Tribunal to conclude that he still held the views and intentions he had before 2001.
50 It was first submitted that natural justice only requires a decision-maker to expose for comment by the affected party an undisclosed conclusion, head of liability or fact, and not the decision-maker’s reasoning process, which was the only undisclosed element in the present case. Counsel for the Minister referred to Alphaone 49 FCR 576, in which the Full Court held, at 592, that:
The decision-maker is required to advise 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.
51 Similarly, in VBAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1288 at [5], Sundberg J approved a Federal Magistrate’s statement that:
…the Tribunal was not under any general obligation, whether under the rules of natural justice or otherwise, to notify the applicant of any deficiencies in his case or any aspects in which the Tribunal doubted his claims, let alone to invite the applicant to meet those perceived deficiencies or doubts. In particular the Tribunal was not
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obliged to notify the applicant of its mental processes or to provide the applicant with an opportunity to comment on its preliminary findings before making its decision.
52 Counsel for the Minister also relied on Lidono 191 ALR 328, in which Gyles J held, at [20], that:
…a tribunal, in assessing and reconciling material before it, is not bound to accept or reject any piece of evidence in whole, and it is often the case that a view of the facts is found which does not accord with the evidence or submissions by either side. … Provided that such a view is properly open on the evidence, and does not involve the use of any fresh undisclosed material or undisclosed head of liability or defence, in my view, the tribunal is not bound to call the parties back and warn of that possibility.
53 The only exceptions, Counsel contended, were those outlined by the Full Court in Alphaone 49 FCR 476 at 591 (citing Jenkinson J in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108-109):
1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J); Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Burchett J). 2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister of Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634.
54 Counsel for the Minister submitted that the content of the obligation to afford natural justice must be judged in a practical way, bearing in mind the way the hearing was conducted and the statutory power pursuant to which the decision is made. He observed that, pursuant to s 33 of the AAT Act, the Tribunal conducts its proceedings “with as little formality and technicality, and with as much expedition, as the requirements of [the] Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit”. Furthermore, Mr Berger emphasised that:
The practicalities in which the Tribunal came to give its decision in this particular case was that there had been 20 hearing days and … each side called 11 witnesses, there was extensive cross-examination of most of those witnesses, there were thousands of documents tendered or put into evidence that the court had to have regard to and extensive submissions were made. In light of all this evidence a multitude of findings were potentially available on the
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basis of the applicant’s credibility or lack thereof and in our submission in order to be able to disclose all those potential findings and the reasoning that might lead to those findings at the end of a hearing of that magnitude would require a superhuman ability to recollect, distil and apply all the evidence and formulate a view about what findings it might lead to in order to expose that to the applicant …
55 Counsel for the Minister submitted that to make a finding based on credit is a mental process rather than a conclusion, head of liability or fact. Accordingly, it was submitted, the Tribunal had no obligation to disclose to Mr Habib that the false denials and untruthful evidence given by him and his wife might be used to conclude that he continued to pose a security risk to Australia.
56 It was conceded that these general principles might not apply in cases where the finding was not one to which the person concerned ought reasonably to have known that he or she might be exposed: see Alphaone 49 FCR 576 at 592; Re Refugee Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at [101].
57 Nevertheless, it was argued that Mr Habib should have been aware that the Tribunal’s assessment of his and his wife’s credibility might inform findings of fact on key issues. Mr Berger referred to Palmer v The Queen (1998) 193 CLR 1, in which McHugh J observed, at [51], that:
… in some cases, the credibility of a witness may be of such crucial importance that it is decisive of the facts-in-issue, particularly where, as in the present case, the witness is a participant in the very facts-in-issue or the only eyewitness to them.
58 At [21]-[23] of his written submissions, the Minister contended:
21. It was also plainly obvious that the applicant’s credibility was of crucial importance. [He] challenged the main evidentiary basis of the assessment and most of the evidence upon which it was based. He disputed the accuracy of evidence of incriminating intercepted telephone calls between him and his wife and denied authoring or knowing anything about incriminating information such as e-mails apparently authored by him and a note book that the respondent claimed was seized from his house. … He also denied having made admissions that the respondent alleged he made during interviews with ASIO officers and alternatively said that he was induced or coerced to make those admissions. 22. Mrs Habib’s credibility was equally in issue. Mrs Habib: a. disputed an ASIO officer’s evidence on oath to the effect that the ASIO officer had found the note book during the search of the
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Habibs’ house, was told by Mrs Habib that it was a note book from Mr Habib’s study when in the Egyptian army but had formed a distinct impression that Mrs Habib was not telling the truth because some of the notes in the book were in English; b. stated that the applicant never sent or received any e-mails, she never sent an e-mail on his behalf before 2005 and could not, herself, use e- mail before 2004; and c. denied that incriminating telephone conversations between her and the applicant had taken place as transcribed. 23. In light of Mrs Habib’s alleged involvement in such matters and the evidence she gave to corroborate the applicant’s version of events the applicant could have been in no doubt that her credibility was also crucial to the outcome of the case.
59 Counsel for the Minister also noted, at [33] of the written submissions, that:
A Tribunal such as the AAT should not be required to advise an applicant of all the adverse consequences that may arise if it is found that he, or his main corroborative witness, do not tell the truth. It should be assumed that a witness will attach importance to the oath they take to tell the truth. …Fairness does not require that all of the exact findings that might flow from a lack of credibility should be outlined in advance.
60 During the course of the hearing, the Tribunal had asked Mr Habib several questions about his current and future intentions if his passport were returned so that he could travel overseas, and Mr Habib gave evidence on oath in response. In addition, Counsel for the Minister had explicitly raised during submissions the possible link between the Tribunal’s findings on the Habibs’ credibility and the finding of fact in question (see [36] above). According to the Minister, the cross-examination of Mr Habib and his wife, the comments made by the Tribunal throughout the hearing, and the submissions by Counsel for the Minister could have left no doubt that their credibility was a crucial issue. At p 1388 of the transcript, Counsel for the Minister was recorded as having explicitly stated at the hearing before the Tribunal that:
In our submission Mr Habib’s evidence about these emails and about the notebook, and about the telephone calls suggests that he has lied about three, at least three of the four major planks in the respondent’s case.
61 At that stage, it was submitted, it should have been clear to Mr Habib that the Tribunal was being invited to find that Mr Habib’s lies suggested that “he continued to have
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anti-western extremist views and his intentions if [he] were granted a passport and [were] able to travel overseas were prejudicial to the national security of Australia and other countries”. Since the Minister’s submissions preceded Mr Habib’s closing submissions, it was asserted that there had been ample opportunity to respond to those submissions or adduce further evidence directed to refuting them.
Disposition of the appeal
62 Essentially, therefore, this appeal involves two issues. The first is whether the Tribunal should have disclosed to Mr Habib the use it proposed to make of its conclusions that Mr and Mrs Habib had told untruths. The second issue is whether, if there was an obligation to disclose, it was in fact sufficiently discharged.
Was there an obligation to disclose?
63 Natural justice requires that a person know the substance of the case against him or her and be given the opportunity to respond to adverse material that is credible, relevant or significant: Kioa & Ors v West & Anor (1985) 159 CLR 550 at 629 (per Brennan J). As the respondents have submitted, however, the obligation to afford natural justice is shaped not only by the statute pursuant to which the impugned decision has been made but also the particular circumstances of the case: ex parte Aala 204 CLR 82 at 109 (per Gaudron and Gummow JJ); Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 at 94, 98 (per McHugh J); Kioa 159 CLR 550 at 611-612 (per Brennan J). Thus, the content of the Tribunal’s obligation must be considered in the context of s 33 of the AAT Act and with due regard to practical considerations related to the course of the hearing including, in the present case, the receipt of a large volume of evidence during a hearing over some 20 days.
64 There are sound practical reasons why a decision-maker is generally not obliged to expose his or her reasoning process or provisional views for comment by the person affected: Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs & Anor; ex parte Applicant S154/2002 (2003) 201 ALR 437 at 449 (per Gummow and Heydon JJ), 456-7 (per Kirby J); Alphaone 49 FCR 576 at 591. There may nevertheless be circumstances where fairness requires prior disclosure of such matters, as where they relate to a critical issue or factor, or where they do not follow from an obvious or natural evaluation of the evidence:
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see Alphaone 49 FCR 576 at 591; Somaghi v Minister for Immigration, Local Government, and Ethnic Affairs (1991) 31 FCR 100 at 108-9 (per Jenkinson J); Lidono 191 ALR 328 at 334 (per Gyles J).
65 The respondents’ short answer was that, since the applicant’s credibility was plainly in issue during the hearing, it would have been well understood by the parties that a witness’s answers to questions “may have probative value when the court or tribunal comes to assess whether they should be accepted as a witness of truth with respect to the facts in issue” (at [11] of the respondents’ written submissions).
66 There is much force in this submission. Whether there was a denial of procedural fairness in a hearing will depend upon what, as a practical matter, the real issues were and how they were addressed.
67 Essentially, the case for the Minister was that Mr Habib’s conduct in the past was such as to provide the basis for a presently held suspicion about his likely conduct if an Australian passport were to be granted to him.
68 Such a case could have been met in several ways, as indeed the Tribunal pointed out at [119] (quoted at [31] of these reasons). Mr Habib could have admitted his prior conduct in whole or in part and sought to demonstrate that what he had done in the past was not indicative of what he might do many years later. He did not take that course. Theoretically, he could have argued in the alternative, challenging accounts of his past conduct but putting it that, even if his past conduct had been as alleged, nevertheless the passage of time and his conduct in the years since removed any reasonable basis for suspicion. He did not take that course either, or any variant of it.
69 Rather, the matter seems to have been contested on the footing that the past was indicative of the present with the respondents putting forward facts about the past and the applicant strenuously denying many of them.
70 There is however a particular aspect of this case that in our view suggests a need, in the interests of fairness, for the applicant to have been put on notice of specific findings the Tribunal might have made consequent upon a conclusion that Mr and Mrs Habib were not
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telling the truth. The specific findings to which we refer are that Mr Habib continued to hold extremist views and that he “supports Usama Bin Laden” (see [25] of these reasons).
71 In this respect the present case can be distinguished from many of the authorities to which the respondents referred. In most of those cases it had fallen to the applicant to satisfy the decision-maker of his or her fitness to hold a licence or a visa and the decision-maker disbelieved the applicant’s evidence with the consequence that the application failed. The alleged error was that the decision-maker had failed to raise concerns about the credibility of the evidence or had failed to give the applicant the opportunity to adduce further evidence: see SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301 at [20]; VBAU [2003] FCA 1288 at [5]. It was held in these cases that the decision-maker had no such obligation. The alleged error here, however, is not that the Tribunal failed to disclose its concerns about the truthfulness of Mr or Mrs Habib’s evidence; it was accepted that, if the Tribunal had merely disbelieved what they had said, that would provide no basis for complaint that Mr Habib should have been alerted to that possibility and its consequences. Rather, the point made here is that the Tribunal failed to disclose that it was going to use the falsity of their evidence to draw certain specific inferences that were fatal to Mr Habib’s application.
72 Lidono 191 ALR 328 can be distinguished on a similar basis. The impugned inference in that case followed as a necessary consequence of the rejection of the evidence of a particular witness, whose credit was clearly in issue.
73 Accepting then that fairness required that Mr Habib be alerted to the possibility that specific findings about his present views and allegiance might be made on the foundation of a finding that he and Mrs Habib were not telling the truth about aspects of their past conduct, we come to the other issue which is whether there was in fact a sufficient disclosure.
Was the obligation to disclose fulfilled?
74 The issue for determination is whether the exchange with the Tribunal in the course of Mr Berger’s submissions before it (extracted at [36] above) sufficiently raised the possibility of the impugned inferences being drawn. Counsel for Mr Habib submitted, first, that Mr
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Berger had referred only to Mr Habib’s lies about the emails and, secondly, that Mr Berger had referred only to Mr Habib’s evidence (see [45] of these reasons).
75 The first objection must fail, especially when the first passage extracted at [36] of these reasons is viewed in context. Immediately beforehand, Mr Berger had said: “In our submission Mr Habib’s evidence about these emails and about the notebook, and about the telephone calls suggests that he has lied about all three, at least three of the four major planks in the respondent’s case”. In response to this, the President asked: “What is the significance of the fact that he lied?”. Taken in context, the President was clearly referring to the lies about the emails, notebook and telephone calls. Mr Berger then proceeded to make the submissions as extracted at [36]. The fact that those submissions only referred to the emails is of no consequence.
76 The applicant’s second objection is of more concern, because at no point did Counsel for the Minister invite the Tribunal to infer from the fact that Mrs Habib had given false evidence that Mr Habib still held extremist views. The respondents’ answer to this submission was that the references to Mr Habib in the closing submissions before the Tribunal were sufficient because it was clear throughout the course of the hearing that the evidence of Mr and Mrs Habib was inextricably linked; in Counsel’s words “they were either both lying or both telling the truth”.
77 We do not see this as an answer to the point raised. Although the evidence of Mr and Mrs Habib was closely linked, the respondents did not point to any invitation to the Tribunal to draw an inference about Mr Habib’s present intentions from the falsity of Mrs Habib’s evidence. This, however, is not the end of the matter, because whether the obligation to afford natural justice has been discharged is not to be evaluated minutely or in a manner divorced from its context. As we have said, the obligation is a practical one. As McHugh J said in ex parte Aala 204 CLR 82 at 122, a “[b]reach of the rules of natural justice…does not automatically invalidate a decision adverse to the party affected by the breach”: see also Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; ex parte Aala 204 CLR 82 at 88-89 (per Gleeson CJ); 116 (per Gummow and Gaudron JJ); 130-131 (per Kirby J); 154 (per Callinan J). McHugh J went on to say (at 122) that a court can refuse relief “when it is confident that the breach could not have affected the outcome”.
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78 We have already found that the impugned inferences, so far as they were drawn from Mr Habib’s false evidence, were sufficiently raised for consideration by the respondents’ closing submissions which, as we have noted, preceded those of Mr Habib. We have also drawn attention to the broader context of the matter having been contested on the footing that the past was indicative of the present (see above at [69]). We are confident that it would have made no difference to the outcome if Mr Berger had invited the Tribunal to draw the impugned inference from Mrs Habib’s evidence as well as Mr Habib’s.
79 For these reasons, each application should be dismissed.
80 Finally, we should note that although the applicant’s notice of appeal contained grounds challenging the Tribunal’s very qualified use of information obtained from him whilst he was detained at Guantanamo Bay, those grounds were abandoned. Accordingly no submissions were made before us about the use of such material, derived at a time when the applicant, in a high security facility, was interviewed whilst manacled, shackled and attached by a chain to the floor. There is therefore no occasion for this Court to address the issues, with which the Tribunal was confronted, that arise when it is sought to use material of such a character in administrative proceedings.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and the Honourable Justices Ryan and Lander.
Associate:
Dated: 24 April 2009
Counsel for the Applicant in each of Mr R Beech-Jones SC with Mr C A Evatt NSD 2303 of 2007 and NSD 1039 of 2008: and Mr W B Nicholson
Solicitor for the Applicant in each of Peter Erman NSD 2303 of 2007 and NSD 1039 of 2008:
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Counsel for the Respondent in each of Mr A Berger NSD 2303 of 2007 and NSD 1039 of 2008:
Solicitor for the Respondent in each of Australian Government Solicitor NSD 2303 of 2007 and NSD 1039 of 2008:
Date of Hearing: 26 November 2008
Date of Judgment: 24 April 2009