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Federal Court of Australia 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. - 2 - 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 - 3 - 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 - 4 - 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.
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