Applicant S254-01, Ex oarte - Re MIMA

[2002] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S254 of 2001

In the matter of -

An application for a Writs of Certiorari, Mandamus and Prohibition against MR PHILIP RUDDOCK MHR, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

DR RON WITTON in his capacity as a member of the Refugee Review Tribunal

Second Respondent

STEVE KARAS in his capacity as principal member of the Refugee Review Tribunal

Ex parte –

APPLICANT S254/2001

Applicant/Prosecutor

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 APRIL 2002, AT 10.00 AM

Copyright in the High Court of Australia

______________________

MR C.R. DE ROBILLARD:   I would seek to appear on behalf of the prosecutor.  (instructed by Diamond Peisah & Co)

MR J. BASTEN, QC:   I appear for the first respondent.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   I have a certificate from the Deputy Registrar informing me that the solicitor for the second and third respondents, the Refugee Review Tribunal and the principal member of the Tribunal, do not wish to be represented at the hearing of this matter and submit to any order of the Court, save as to costs.  They are excused. 

Yes.  Well, let us get the record in order.  You are moving on an affidavit of Arnold Joel Conyer which is sworn 26 October 2001.

MR DE ROBILLARD:   That is correct, your Honour.

HIS HONOUR:   Is that the only affidavit that there is?

MR DE ROBILLARD:   It is, your Honour.

HIS HONOUR:   Yes, very well.  Do you object to anything in that affidavit, Mr Basten?

MR BASTEN:   No.

HIS HONOUR:   Do you want to ask any questions of Mr Conyer?

MR BASTEN:   No.

HIS HONOUR:   Yes, very well.  I read that affidavit.  Is that the only affidavit you have?

MR DE ROBILLARD:   It is, your Honour.

HIS HONOUR:   Yes, very well.  Is there any affidavit of the Minister?

MR BASTEN:   No, your Honour.

HIS HONOUR:   Now, there were written submissions for both parties and I gather that there are some additional documents that have just been sent in:  a chronology.

MR DE ROBILLARD:   It is of the prosecutor, your Honour.

HIS HONOUR:   And then there is a reply to the respondent’s submissions.  I will just take a moment to read those.  Yes, I have read those.  I have not read the chronology but I assume that it is just an elaboration of the material that is in the decision of the Tribunal or in the written submissions.

MR DE ROBILLARD:   That is so, your Honour.

HIS HONOUR:   Yes, very well.  Well, what do you have to say, Mr de Robillard?  It looks awfully like a dispute on the facts.  It does not stand out as a case of jurisdictional error or error of law which is what you have to raise it to.  We cannot sit here as an appeal court from factual determinations by the Tribunal. 

MR DE ROBILLARD:   No, I understand that, your Honour.

HIS HONOUR:    That is as it presently strikes me.

MR DE ROBILLARD:   I am grateful to your Honour for those comments which sort of let me know where the starting point ought to be.  In my respectful submission, your Honour, the ‑ ‑ ‑

HIS HONOUR:   I should say that I have been assisted by written submissions on both sides which have been very helpful.  So we can go straight to the point.  The privative question which is undoubtedly an important question does not arise if the case is not otherwise one that is arguable for the provision of a constitutional writ.  It is only if you get the constitutional writ that the question of whether or not the privative clause stands in the way would arise.  That question is an important question:  query, whether the Parliament could limit the grant of the constitutional writs to two days or one day.

MR DE ROBILLARD:   Yes, your Honour.

HIS HONOUR:   And, if so, what is the magic in 20 days or 30 days.  So that is an important question, and if that were raised by your case, that, alone, would warrant the grant of the order nisi, but the occasion to consider that would be on a case which otherwise would get relief.

MR DE ROBILLARD:   Yes, your Honour, I understand that ‑ ‑ ‑

HIS HONOUR:   Therefore, I have indicated that my reading of the decision of the Tribunal and the written submissions leads me, at the moment, to think that this is just a case where your client had a Tribunal member who was not perhaps as sympathetic to him as he might have wished and who reached conclusions on the facts which were adverse and disputable but factual and not jurisdictional.

MR DE ROBILLARD:   Except for this, your Honour:  the gist of our case is based on this procedural fairness case which we say we put far more strongly than does my learned friend, Mr Basten.  We say, your Honour, that the Tribunal was not entitled to simply wave away the claims we made as to political involvement through being an informant with the Lebanese Forces.  What it was, it simply waved away those claims by saying that this came in late and it was a concoction.

HIS HONOUR:   Well, they did not come from your client.  They came from a witness.

MR DE ROBILLARD:   In my respectful submission, your Honour, that makes no difference.  It is evidence which is in support of ‑ ‑ ‑

HIS HONOUR:   It is a bit peculiar if you are seeking refugee status, if you are claiming a protection visa and you come along to say the foundation is the extortion of Syrian officers and then a witness says, “And by the way, he was giving political and military intelligence to the Lebanese Forces” and, therefore, “By the way, there happens to be a second ground, namely, political opinion.”

MR DE ROBILLARD:   Yes.  Well, your Honour, the way we say that is important is this, that we said in our own evidence that we were, in fact, on fairly good terms with the Syrian Forces up to 1994 and we anchor that date by the fact that we came to Australia in 1993 and everything was rosy and we went back, and it was post‑1994, and particularly from around 1998 that extortion became severe and we, in fact, were required to run away from home and hide for some time immediately before we left.  That is the basis of our claim.

The reason we say Mr Sandroussi’s evidence is important is that we, ourselves, only discovered the importance of that evidence when we spoke to Mr Sandroussi about a month before the actual hearing of the case, in that Mr Sandroussi had not told us previously that there was a list with our name on it that had been released to the authorities unbeknownst to us, and that is the very gist of our claim.  We are saying it was not within our knowledge, for reasons which are explained, until just a month before we went to the Tribunal.  But what the Tribunal did was to say this, “This came late; it is a concoction”, when, in fact, Mr Sandroussi was there to say the only reason this became more evident is after we had had a chat and after my mother had died and I had come back from Lebanon.  I met Mr Sandroussi by chance when I visited his sister to invite her to a wedding in December but then after that I was very busy with my mother being sick and eventually I went to Lebanon and buried her there and came back.  And it is only after that that I then met again with the applicant and we discussed it and then when he told me what had been happening to him I had the explanation from my side, and I had not thought it fit to tell him previously because, one, he was in Lebanon and, two, I was afraid by telling him that he would change his routine there and draw attention to himself.

In my respectful submission, your Honour, what the Tribunal failed to do was to address any of those issues by simply saying, “Look, this is all a concoction”, when, as we have said in the submissions, your Honour – my solicitors have said in the submissions – in fact, various limbs of that “concoction” were provable by objective facts.  That is as Mr Sandroussi could have proved, yes, his mother resided in Queensland for a long time; she was sick; she died; he took her body to Lebanon.  All of those things would have explained the gap between December and the preparation of the statements.

HIS HONOUR:   Well, every day of the week juries, tribunal members and judges are reaching conclusions about credit.  If you have followed the law reports since I was in the Court of Appeal, you will see that I am very sceptical about the capacity of human beings to tell truths and falsehood by appearance.

MR DE ROBILLARD:   Yes.

HIS HONOUR:   But I am one of the timorous souls in that respect.  There are a lot of robust spirits out there ‑ ‑ ‑

MR DE ROBILLARD:   I understand, your Honour.

HIS HONOUR:   ‑ ‑ ‑ including on juries, tribunals and courts, who take the view that they can decide this question on appearance and what you are saying is appealing to me because I would be looking for the logic of the matter but I do not constitute the Tribunal.  The Tribunal member constitutes the Tribunal and he looked at all this and came to the view that it was a concoction.  That is just a factual question.

MR DE ROBILLARD:   Except for this, your Honour.  If one looks at the authority of Aala which relies on, for instance – I think his Honour Justice McHugh relies on Mahon v Air New Zealand which is also, as I have said in my submissions in reply, an inquisitorial body of similar type to the Tribunal.  It was a royal commission into an air crash.  In my respectful submission, your Honour, especially when the witness was a solicitor who actually made some statements, we say, on our interpretation, which drew attention to the possibility that the Tribunal may not believe the story simply because it looked far fetched.  I mean, very often truth is more far fetched than fiction.

Now, the point is, your Honour, we say the Tribunal, absent the privative clause, as your Honour – decision amendments, we say under normal administrative law rules which are implied in the Act, the Tribunal ought have put to my client and to the witness squarely, “This is a concoction because why did you not come up with this earlier?”

HIS HONOUR:   A difficulty I have with that is this:  first of all, I agree that if it is going through your mind that something said is a falsehood, it certainly is good practice for a Tribunal member or a judge to put that to the person concerned because it gives the person the opportunity of meeting the anxiety that is troubling the decision‑maker.  But the fact is that sometimes in deciding a case, it is seeing some aspect of the evidence or reflecting on it as a whole or seeing some aspect of the law or reflecting on the whole case and the law that is critical to the decision and, therefore, to lay down an absolute rule that in every case you have to put a point to the person concerned is a little unreasonable on Tribunal members and judges because sometimes they do not reach the view about it being a concoction or being unarguable until after they have looked at the whole thing.  So, that is the problem I have with laying down an absolute rule.

MR DE ROBILLARD:   Yes, your Honour. But, your Honour, one needs to look at it in the context of the statutory provisions determining the Tribunal’s process and that is also stated in our initial submissions, namely, the very purpose of those hearings is to raise with the applicant questions in the Tribunal’s mind which would prevent the Tribunal from giving a favourable decision to the applicant, with respect. I mean, that is the scheme of the Act, because if the Tribunal could reach a favourable decision to the applicant on the papers, then it would simply ‑ ‑ ‑

HIS HONOUR:   It would deal with it on the papers.

MR DE ROBILLARD:   Yes, your Honour. So that, in my respectful submission, your Honour, is different from a jury or a trial situation because we start from the point of view that the very purpose of the meeting is to raise issues that concern the Tribunal. The Tribunal then is faced with the solicitor – and one must bear in mind, your Honour, that this is an officer of the court who is punishable – where the Act imposes severe penalties on him if he intentionally gives false evidence before the Tribunal. So, in other words, your Honour, we say it is a serious matter for the Tribunal to find – which, in fact it did – that the solicitor concocted a story ‑ ‑ ‑

HIS HONOUR:   I do not read it that way.  I may be wrong and I will ask Mr Basten to help me on that, but I read it that the solicitor may have given correct evidence but that that does not necessarily amount to a correct interpretation of the events at the time.  I mean, the solicitor might well have said what he understood to be the case but that that does not amount to the reason for the well‑grounded fear that the Convention requires.

MR DE ROBILLARD:   I understand that, your Honour, but the point is this, your Honour:  the Tribunal used the word “concocted”.  This evidence was concocted because of its lateness.  It even says – the Tribunal then goes on to say, “And I don’t even believe the explanation as to lateness about the mother’s situation”, when, in fact, the mother’s situation could have been easily inquired into with objective facts, such as the fact that he used to go to Queensland regularly, as he says he did.  One would have airline tickets.  That she lived in Queensland, et cetera.  We have listed that in paragraph 10(g) of our submissions, your Honour.  There were facts which were easily verified by objective facts and the Tribunal did not at all raise one of those issues with the solicitor; simply waved it away.

The next point then is, your Honour, that even if, as your Honour says, thereafter the Tribunal thought about it and said, “Well, maybe it was a concoction”, in my respectful submission, it is within the power of the Tribunal to then again either recall a hearing or ask for written submissions or ask for comments on it.

HIS HONOUR:   Well, it is within the power, there is no doubt about that and it is within good practice to raise matters like this when you are concerned about them, but that is not the issue before me. The issue is whether it is reasonably arguable a failure to raise it or a failure to recall the witness and say, “Well, I think you are liar” or “I think this is a concoction” or “I think this is not correct” is such an error as to amount to a fatal jurisdictional flaw because that is the foundation on which natural justice becomes a basis for constitutional relief, that it means that although purporting to perform its functions under the Act, the Tribunal has not really done so.

MR DE ROBILLARD:   We say, your Honour, relying on cases such as Aala and Miah, it is a fatal flaw if procedural fairness is not granted by the Tribunal because ‑ ‑ ‑

HIS HONOUR:   Can I understand your proposition?  Is it that in every case where the Tribunal reaches a view that a person is telling false testimony, that the Tribunal is obliged by the law to say to the person, “I think you’re telling a lie”?

MR DE ROBILLARD:   In my respectful submission, your Honour, it may not need to go that high but before the Tribunal decided that the solicitor’s story about his mother was a concoction or was not to be believed, the Tribunal ought at least to inquire into those facts.  In one sense, it would say, “Well, you say your mother was sick and you were busy there.  What’s your evidence of that?”  In other words, it might be too open to say, “Well, I believe you’re lying”, but at least it ought to address those issues and say, “Look, Mr Sandroussi, I am concerned about the fact you are saying you had no time at all to help your cousin, the applicant, because of your mother.  Well, what are the facts there to establish those?”, and it did not do that, with respect.

HIS HONOUR:   Yes.  Well, we must be careful here not to turn this into an appeal that is designed to protect the solicitor because, as I say ‑ ‑ ‑

MR DE ROBILLARD:   No, I understand that, your Honour.

HIS HONOUR:   ‑ ‑ ‑ there is an interpretation of what was said that is compatible with the solicitor being completely honest but simply misunderstanding the circumstances.

MR DE ROBILLARD:   Well, in my respectful submission, your Honour, it would be a fair reading of the Tribunal’s statements about the evidence given by the solicitor is not simply that he was believed but that those facts were ‑ ‑ ‑

HIS HONOUR:   You say the strong word “concoction” is an indication of a serious attempt to mislead the Tribunal.  But I say, again, I am not here to conduct, and the High Court is not here to conduct a disciplinary proceeding about a solicitor’s testimony.

MR DE ROBILLARD:   I understand that, your Honour.

HIS HONOUR:   That is for other people if it arises and I hope and expect that it will not, but what we are concerned with is whether it led to the consequence of a jurisdictional mistake on the part of the Tribunal affecting your client, the applicant.

MR DE ROBILLARD:   All I can say, your Honour, is that, in my respectful submission, in cases such as Aala and Miah, there is a duty on the Tribunal to put those facts, at least – not to go so high as to say, “I believe you are a liar.  What have you got to say about it?”, which very often will not lead anywhere but at least to put to the witness those facts which the Tribunal has some doubt about and ‑ ‑ ‑

HIS HONOUR:   What is the best passage in Miah or Aala that you say establishes that as a principle, because Mr Basten relies on a decision of Justice McHugh in a single Judge matter, Durairajasingham or some name like that?  He says that that is not the duty of a Tribunal whose procedures are principally inquisitorial.  You have to be careful that you do not get into a position that judges and Tribunal members saying “You’re a liar”.  I mean, it is rather unpleasant in court if we did that every time we thought somebody was pulling the wool over our eyes.  I would be doing it quite a bit to counsel in the High Court.

MR DE ROBILLARD:   Your Honour, with respect, that was the point I was making:  one ought not to say, “You’re a liar”, but one ought to say ‑ ‑ ‑

HIS HONOUR:   Your complaint is the word “concoction” but maybe this Tribunal member is one of that small and, I hope, diminishing class of people who think they have this magic capacity to tell truths from fiction by appearance.

MR DE ROBILLARD:   Your Honour, that is why I am saying it need not be “You’re a liar” but the Tribunal member ought to have addressed those facts about the mother’s sickness, for instance.

HIS HONOUR:   All right.  Well, you tell me the best passage in Aala or Miah.

MR DE ROBILLARD:   Paragraph 26, which is part of the judgment of the Chief Justice and Justice Hayne under the title “Procedural fairness”.

HIS HONOUR:   Is this Aala or is this Miah?

MR DE ROBILLARD:   This is in Miah, I am sorry, but Miah postdates Aala and Miah ‑ ‑ ‑

HIS HONOUR:   What is the citation?

MR DE ROBILLARD:   It starts off referring to Aala.

HIS HONOUR:   What is the reference?

MR DE ROBILLARD:   I am sorry, your Honour: 75 ALJR 889. I am grateful to my friend. I have only got the ‑ ‑ ‑

HIS HONOUR:   The pamphlet.

MR DE ROBILLARD:   Yes, your Honour.  Paragraph 26, your Honour, where the Chief Justice and Justice Hayne refer with approval to Aala; to those principles of procedural fairness set out in Aala, and then it says:

Applying those principles to the present case, subject to the question of discretion –

which, of course, is always applicable –

constitutional writs may issue if the prosecutor makes good his argument that the decision of the delegate was made in breach of the rules of natural justice, the relevant rule being that requiring procedural fairness.  Such a denial of procedural fairness would mean that the delegate was acting in excess of jurisdiction.

HIS HONOUR:   Yes.  Well, there is no doubt about that  The question is whether you lift yourself up to an excess of jurisdiction in this case; whether the want of a desirable procedural device, to suggest to the solicitor, “Look, I am very troubled about what you are saying to me and I am very troubled that you are telling me the truth.  What are the facts on which you are stating this to me?”  The question is whether, in this case, failure to do that and then launching into the robust word “concoction” amounted to a deprivation to your client of the entitlements of procedural fairness or natural justice.  What did I say on this matter?  It is always nice to read your own because you remember those more vividly than you tend to remember ‑ ‑ ‑

MR DE ROBILLARD:   Your Honour starts at paragraph 155.

HIS HONOUR:   Was I in agreement in this case?

MR DE ROBILLARD:   Yes, your Honour.  And 171.

HIS HONOUR:   At 187, according to the headnote:

where the information is new and considered critical for, and even determinative of, the decision, particular circumstances can combine to oblige the decision‑maker to place such information before the person whose interests are so seriously affected so as to gain assistance in the making of the decision. 

MR DE ROBILLARD:   Yes, your Honour.  Miah concerned some country information which – I suppose I can recall the case which was available to the Tribunal ‑ ‑ ‑

HIS HONOUR:   This was the suggestion that there had been an election and everything had been fixed up.

MR DE ROBILLARD:   That is so, your Honour.  That was not put to the applicant.

HIS HONOUR:   Well, that is not really this case, is it?

MR DE ROBILLARD:   It is not really this case, your Honour, but ‑ ‑ ‑

HIS HONOUR:   It is something new.

MR DE ROBILLARD:   But, in my respectful submission, your Honour, that was obviously something of concern that was pivotal to the decision of the Tribunal which was not put for comment to the applicant and, in my respectful submission, the finding that the solicitor had not been truthful about his mother’s situation in relation to the explanation as to why this was not put to the Tribunal earlier is, in my respectful submission, pivotal to the decision of the Tribunal.  As we have said and as is stated in Aala, we say the finding as to credit infected the Tribunal’s view of the substantial claim by the applicant and especially, your Honour, when the solicitor actually did raise the issue of credit with the Tribunal and invited the Tribunal to make a comment on that.  Obviously, if the Tribunal said, “Well, yes, I do have some doubt about your mother and what you say about that”, then he would have said to the Tribunal, “Well, I would like to have an opportunity to put before the Tribunal those facts which would justify the circumstances surrounding my mother’s illness and my inability to attend to this matter previously.”  Do not forget, your Honour, that in this matter the solicitor just happened to be a solicitor.  I mean he was not the applicant’s solicitor.

HIS HONOUR:   Yes, but I repeat, I am not here in the Disciplinary Tribunal of the Law Society.

MR DE ROBILLARD:   No, I understand all of that, your Honour.

HIS HONOUR:   I am here considering the position as it affected the applicant.

MR DE ROBILLARD:   The point I am making, your Honour, is simply it is a witness, a witness offering in support of an applicant’s claim certain facts.

HIS HONOUR:   Yes.  It is perhaps a bit unfortunate that the Tribunal used the word “concoction”.  It is a rather damning sort of word.

MR DE ROBILLARD:   It is, your Honour.  If one looks at Mr Sandroussi’s evidence, one sees that he actually tried to explain the lateness of it and the Tribunal just did not go down that path at all. 

HIS HONOUR:   Yes, but that is simply saying, “Don’t worry about the lateness”.  That was in response to something that was said to the Tribunal – said by the Tribunal.

MR DE ROBILLARD:   The solicitor, also, your Honour, at ‑ ‑ ‑

HIS HONOUR:   What page is this?

MR DE ROBILLARD:   Well, if your Honour goes to page 38.  If I could take your Honour to page 38 of Mr Conyer’s affidavit, which is a transcript.

HIS HONOUR:   I have the transcript.  What page at the bottom, P ‑ ‑ ‑

MR DE ROBILLARD:   P-11, your Honour.

HIS HONOUR:   Just let me read the context.  Whereabouts on the page?

MR DE ROBILLARD:   The full paragraph – the penultimate paragraph on that page where he says:

No, the third note I will tell you is don’t – don’t think that we did not talk about this.  We’ve discussed these statements before ‑ ‑ ‑

HIS HONOUR:   Let me just read the passage again.

MR DE ROBILLARD:   Yes, your Honour.

HIS HONOUR:   But is not the Tribunal there merely talking about the technical issue about the – that there is no problem with the late provision of a statement?

MR DE ROBILLARD:   Yes, your Honour, but in my respectful submission when one reads the penultimate paragraph the solicitor there as a solicitor is making it clear to the Tribunal that he did meet with the applicant to discuss the matter.  In other words, he is going to matters which go to the truth of the statements because as a solicitor he is probably aware that one ought not get together with someone else to make a statement, to prepare a statement, and he says, “Yes, we are here to tell the truth” – that is the last sentence at the bottom – and he goes through the fact that he did discuss the matter with the applicant and they made statements together and the Tribunal member says, yes, “I would assume that.”

HIS HONOUR:   But the Tribunal member does say:

Well, it does raise the question why – you’ve always known each other ‑ ‑ ‑

MR DE ROBILLARD:   Yes, “you’ve always known each other” et cetera.

HIS HONOUR:   And this follows the invocation of the Almighty, the statement that “God’s inspiration came down on both of us”.

MR DE ROBILLARD:   Yes, your Honour.

HIS HONOUR:   One perhaps feels a little uncomfortable at the introduction of God into this.

MR DE ROBILLARD:   Well, your Honour, that is ‑ ‑ ‑

HIS HONOUR:   It may be a cultural matter.

MR DE ROBILLARD:   It is, your Honour, with respect.

HIS HONOUR:   It may simply be a cultural matter.

MR DE ROBILLARD:   With respect, it is, your Honour.

HIS HONOUR:   Maybe I am reacting as an Anglo‑Saxon does to the invocation of God ‑ ‑ ‑

MR DE ROBILLARD:   Well, your Honour, that is the way people from those areas ‑ ‑ ‑

HIS HONOUR:   Well, I will put that aside, but it is still – the Tribunal does say, “Well, it does raise the question you’ve known each other”, so there is really a hint in a polite way that there is a certain scepticism about this.

MR DE ROBILLARD:   Yes, your Honour.

HIS HONOUR:   You see we would not really want to get to the situation in courts and tribunal by saying, “Well, every time you suspect somebody is lying, you’ve got to ram it down their throat.”  That would be a very ‑ ‑ ‑

MR DE ROBILLARD:   ‑ ‑ ‑ un‑Australian thing to do.

HIS HONOUR:   Well, it would be rather alien to our way of doing things.

MR DE ROBILLARD:   Exactly, your Honour.

HIS HONOUR:   They say the Anglo‑Saxons are very polite, though slightly hypocritical, but that is just our culture.

MR DE ROBILLARD:   Yes, your Honour.

HIS HONOUR:   Arab people can raise the Almighty and Anglo‑Saxons are polite, but we have just all to work together in this country.

MR DE ROBILLARD:   But then, your Honour, what he does is, at about point ‑ ‑ ‑

HIS HONOUR:   But he does seem to indicate a scepticism.

MR DE ROBILLARD:   Yes, your Honour.

HIS HONOUR:   So he has signalled that.

MR DE ROBILLARD:   As to why they discuss it late and then he goes – but then the solicitor explains his mother’s illness and the Tribunal says, “Okay, that’s all right.  Okay.”

HIS HONOUR:   But this is a really collateral issue.

MR DE ROBILLARD:   The mother’s illness?

HIS HONOUR:   Yes.  If you say, “Well, I’m a bit sceptical about this”, more than he has at the top of the page, you are then taking the Tribunal off into a completely collateral issue about the mother’s illness and getting facts and proving that and it really is very remote from the issue which the Tribunal has to consider.

MR DE ROBILLARD:   But in this case, your Honour, that was the fulcrum of our case.  We are saying we were in trouble because we had acted as an informant.

HIS HONOUR:   Yes, but the serous illness of the mother of the solicitor who is a witness is not going to establish that one way or the other.

MR DE ROBILLARD:   It would explain the lateness in the statement coming on, your Honour.  There is one explanation which is, “We only met in Australia in December last year.”  That is a first step, but then he still have to explain between then and August when he did file the statement.  We have said it was filed about a week before the Tribunal’s hearing and why they – I mean, if they met in December then it is only much later after his mother had died and he had gone to Lebanon that we actually had time to focus on what had happened to the applicant in the meantime, between 1994 and now.

As your Honour has said himself in many cases, those refugee cases are often hard to prove.  Your Honour has said that, I think, in Aala and the facts are hard to prove because things have happened overseas.  Now, in this case the applicant was simply lucky, we say, that he happened to meet with Mr Sandroussi and then after Mr Sandroussi’s mother’s death had a chance to discuss the matter and that is when he obtained his explanation as to why he was being persecuted whereas before he had not really suffered from the Syrian soldiers pre‑1993.

HIS HONOUR:   Yes.

MR DE ROBILLARD:   Your Honour, I do not think there is much more I can put to the Court in that context, but we say, your Honour, if one looks at the scheme of the Act, the very purpose of these hearings, then one must look at it differently from a normal - a trial by jury, et cetera, and we say because it played such an important role in our claim as to political involvement – and it should be noted too, your Honour, that the Tribunal accepts that we were politically involved. It is not as if the Tribunal is saying, “No, you never had any political involvement with Lebanese Forces.” He says, “Yes, if you go back and you continue to support the Lebanese Forces, I believe you will still not suffer serious harm because at worst you will be in prison for 45 days or between seven and 45 days, which is the extent of persecution to people politically involved supporting the Lebanese Forces.”

But that takes me on to another point, your Honour.  We say even then one must look at whether the Tribunal has committed an error of law, whether you call it jurisdictional error or constructive failure to exercise jurisdiction, when one looks at the way the Tribunal looked at the issue of persecution, the Tribunal seems to say, “Well, imprisonment of a very short term, between seven and 45 days, is not of such seriousness that it would amount to persecution.”  Then one has to address issues such as what is in Chan, the classical statement.  So that is one aspect of it.

The other aspect of it, your Honour, is we say based on the case of Sellamuthu, which has been followed right down now, where the Tribunal has, in fact, not addressed one of the substantial claims made by the applicant and I have set that out in the main submissions at paragraph 13 onwards.

HIS HONOUR:   Yes.

MR DE ROBILLARD:   So we say, your Honour, that unfortunately we say the Tribunal’s exercise of power has miscarried because the Tribunal has simply reached a conclusion about the credit of the applicant and his witness without having given to the applicant the benefit of procedural fairness.

HIS HONOUR:   Yes.  Do I gather that the principal matter that you suggest is the failure to accord natural justice to your client?  Is that the fulcrum of your case?

MR DE ROBILLARD:   Well, it is, your Honour, in that absent giving procedural fairness we say the substance of our claim has not been considered because our claim is that we were being persecuted because of our support for the Lebanese Forces and that has simply been thrown overboard, to use an unfortunate expression, but without really serious consideration as to the truth of our claim and really, your Honour, when one looks at – I will not take that any further, your Honour, but – and if one looks at page 26, your Honour, part of the Tribunal’s decision, page 23 at the bottom, the second paragraph there at about point 4:

The Tribunal accepts the applicant’s continuing commitment to the LF and his opposition to the Syrian presence.

In other words, your Honour, on one hand the Tribunal is saying, “Well, I don’t believe you did anything at all.  It was a pure concoction.”  But on the other, “Yes, I accept that you are committed and you will continue your opposition.”  But then he changes ‑ ‑ ‑

HIS HONOUR:   Well, that would not be an unusual conjunction of facts.  There would be many Palestinians who object to the presence of Israeli Forces in their land but who do nothing about it because they just feel unable to do anything.  So it is not necessarily inconsistent.  The same would be true in Ireland.  The same would be true in many countries.  People object but they just feel powerless.

MR DE ROBILLARD:   All right.  Yes, your Honour, but then the Tribunal ought have applied to the “real chance” test and said, “What if I am wrong?”, as your Honour said in Wu Shan Liang, said, “What if I am wrong?  What if this man did get involved in this matter – in this sort of activity?”

HIS HONOUR:   It is a little odd though, just in the sequence of events, that a matter which would agitate an ordinary person as being relevant to their fear of why they would not want to go back to their country of nationality that that should not be in the forefront of your client’s mind at an early stage of his application for a protection visa.

MR DE ROBILLARD:   Except for this, your Honour, the Tribunal characterises our involvement as being a spy.  In other words, the Tribunal has interpreted it as if it is a high level of activity, whereas in ‑ ‑ ‑

HIS HONOUR:   But when you are seeking refugee status it is a matter of all systems go.

MR DE ROBILLARD:   Yes, your Honour.

HIS HONOUR:   And everybody knows that.  You have to put your best foot forward.

MR DE ROBILLARD:   But, your Honour, if anything, that ought to have gone in my client’s favour because he explains himself that at the time, at first when he was asked to do this he was worried because he said, “I’m going to be a spy.  I don’t want to be a spy and spies end up dead,” et cetera, but then he says himself that when he did do what he did, which was simply to inform of movements or activities of the Syrian Forces as he travelled around the countryside, because he had the opportunity, he did not believe that what he was doing was of any great moment until after he spoke to Mr Sandroussi and Mr Sandroussi said, “Yes, now what you are doing is important to us.  Although it may not appear important to you, but telling the story of what you hear and what you see is of great importance to us because it allows us to even double check facts we are being told from someone else.”  In other words, he had no real explanation himself in his own mind as to why he was being extorted or persecuted until after he spoke to Mr Sandroussi, because he had also been told by Mr Sandroussi, who he trusted, that his name would not be released and one would have expected

Mr Sandroussi to warn him if he had been found out, but Mr Sandroussi did not tell him anything, and there is an explanation for that as well.

HIS HONOUR:   Yes.  Could I ask you, I see that in the Tribunal’s decision reference is made to the fact that the application was made both by the applicant and his wife.  Can I take it that the position of the wife rides on the success or otherwise of the applicant?

MR DE ROBILLARD:   In the way the case had been run, yes, your Honour, although the wife does say that she suffered when she was pregnant and there was a raid, et cetera, but she has not made an application ‑ ‑ ‑

HIS HONOUR:   She has not made a separate application?

MR DE ROBILLARD:   No.

HIS HONOUR:   So that I can in a sense ignore her case and deal with the matter on the basis of the applicant’s claim?

MR DE ROBILLARD:   Yes, that is so, your Honour.

HIS HONOUR:   Yes, thank you very much, Mr De Robillard.

MR DE ROBILLARD:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr Basten.  Would you help me, first of all, with this point about the privative clause.

MR BASTEN:   Yes.

HIS HONOUR:   Does that arise if there is no arguable case or does that only arise in your case as a defence to you in the event that otherwise the Court were minded to give the relief that is sought by the applicant?

MR BASTEN:   It could arise in either way, I suppose, your Honour, but on one view the way to approach the matter is to identify three questions.  The first is, what did the Tribunal do in this case?  The second is, if there was an error, what was the nature of the error?  The third is to ask what is the statutory scheme within which the matter has to be addressed.

HIS HONOUR:   Now, I ask the question because obviously the effect of the new legislation is quite significant.

MR BASTEN:   Yes.

HIS HONOUR:   There are very many cases and there would be no doubt that at some stage this Court would probably want to have a look at the so‑called privative provisions in the new legislation.

MR BASTEN:   Yes.

HIS HONOUR:   But one would think that one would normally want to do that in a case where otherwise the case had merits but in a sense was knocked out because of the privative provision, if it be valid.  That being the case, what I am asking is, am I obliged to consider the privative provision, as it were, as an anterior question here?  Because if I am, that is undoubtedly an important question on which an order nisi will at some stage be granted ‑ ‑ ‑

MR BASTEN:   Yes.

HIS HONOUR:   ‑ ‑ ‑ or is the proper approach to say, “Is this a reasonably arguable case which but for the privative provision would lead to constitutional relief in this Court?”, so that the question of the effect of the privative provision is clearly and neatly tendered for the Court’s decision?

MR BASTEN:   Yes.  Well, we would accept that that would be the correct approach, your Honour.  It might be an anterior question if there were any suggestion that this Court’s jurisdiction were in someway ousted.  We are not putting that proposition.  So it would not necessarily arise as an ancillary question at all.

HIS HONOUR:   Yes.

MR BASTEN:   So the view I was seeking to put was that if one looks at what the Tribunal does and sees whether there is an arguable question, for example, of a breach of natural justice or procedural fairness, one may then wish to ask whether nevertheless one does not wish to address it in this case.

HIS HONOUR:   Yes.

MR BASTEN:   But approaching it in that way, your Honour would not need to consider the effect of the privative case.  May I just say one or two things about it in that sense.  Firstly, if your Honour has the Tribunal decision in front of you, at page 21 of the decision, in the last paragraph on the page – I am sorry, perhaps I should say that the reasoning really starts at the top of that page where the Tribunal identifies the applicant’s claim that he was subjected to extortion because of his previous role as a spy for the Lebanese Forces, and that is the basis of his claim.

The extortion, of course, is accepted.  Then if one goes to the last paragraph on the page, where the Tribunal member comes back to the question of whether he did act as a spy and that the information had fallen into Syrian hands and that this was the reason for the extortion ‑ ‑ ‑

HIS HONOUR:   Now, just pausing there.  There is some suggestion that the extortion was linked to the applicant’s religion, is there not?

MR BASTEN:   Yes.

HIS HONOUR:   That there was stamping on the cross or – is that correct?  Were the two cases put, one religion, one political?

MR BASTEN:   There were two bases for the claim.  Yes, there were two bases, your Honour.  The pulling the cross from the applicant’s neck is referred to at about point 5 on that page in the reasons and it seems to have been rejected simply as not bearing on the motivation for the extortion, a factual finding that religion was not the motivation for the extortion.  The suggestion does not seem to be pressed that the removal of the cross and stamping on it itself constituted persecution.

So if one comes back to the question of what was the reason for the extortion, there are, as I was noting, in the last paragraph three factual steps.  The first was that he acted as a spy.  The second was that this information had fallen into Syrian hands.  The third was that this was the reason for the extortion.  Then the Tribunal says he finds this claim to have been contrived and if your Honour reads the next sentence, he goes to the third point:

If indeed, the applicant had ever fulfilled such a role –

and, implicitly, and the Syrians knew it –

then one would have expected the Syrians to have acted upon this information immediately and not through extortion by isolated Syrian field officers.

That seems to be the Tribunal’s problem.  If I might just take your Honour to the statement of Mr Sandroussi, which is annexure C to Mr Conyer’s affidavit, he sets out the background to the matter that your Honour is familiar with and at paragraph 22, he says:

I cannot explain why did the Syrians limit themselves to the abovementioned activities and did not take more radical measures.  My guess is that as they consider themselves in complete control of the situation in Lebanon, they did not think it appropriate to take the matter any further and that as long as . . . is paying them money he would be more useful to them than if he was arrested or dead.

And then he suggests a useful insight.  As I understand what the Tribunal is saying, is it just does not accept that speculation as to the reason for the extortion and ‑ ‑ ‑

HIS HONOUR:   What is the meaning of the word “contrived” and “concocted”?

MR BASTEN:   Yes, he uses the word “contrived” on the next page.  The contrivance is the attempt ‑ ‑ ‑

HIS HONOUR:   Where is the word “concocted” used?

MR BASTEN:   Page 22, your Honour, at about point 4 in the middle of the paragraph:

The Tribunal finds support for its belief that this evidence ‑ ‑ ‑

HIS HONOUR:   Yes, “was recently concocted”.  Is that suggesting that the solicitor has lied before the Tribunal?

MR BASTEN:   Well, I did not read it in that way, your Honour, because – and this is the point I was seeking to make really – the statement which is not accepted is the speculation.  The Tribunal makes no finding as to whether he may have been a spy or not.  It seems to accept that he may have been.  It certainly accepts that he had a continuing commitment to the Lebanese Forces.  It says that at page 23 in the beginning of the second paragraph.  It speaks about the possibility that he was a spy without ruling on it.  So that does not seem to have been disbelieved.

What seems to have been the concoction was this suggestion that his role was the explanation for this extortion by the field officers, which the Tribunal treats as not a rational explanation for what had happened.  The Tribunal goes on in that paragraph on page 22 to say that this material was “presented in the last few days” and so on, but if one goes to Mr Sandroussi’s statement, it really is speculation on his part and I think, with respect, that may well have been the basis on which the Tribunal approached it.  In other words, there may be an explanation why the prosecutor did not mention all this stuff to anybody before in making this application, namely, that he did not think it explained what was happening to him.  But, your Honour, obviously it would be surprising if the Tribunal had made an express finding that the solicitor had lied in a particular manner and, as I said, I do not think, fairly read, that was what this ‑ ‑ ‑

HIS HONOUR:   I just have to be careful not to turn this into a case about the solicitor ‑ ‑ ‑

MR BASTEN:   That is right, yes.

HIS HONOUR:   ‑ ‑ ‑ as distinct from a case about the applicant, but the concoction is presumably a concoction between the applicant and the solicitor.

MR BASTEN:   Yes, but that the concoction goes to the speculative view that this might explain what happened to him, not some random extortion of this man as apparently having the wealth to meet the ‑ ‑ ‑

HIS HONOUR:   On the face of things it seems an odd response to have finding a spy for an isolated officer of the Syrian Army to try to deal with the issue by taking a bit of money from him.  It does not seem very rational.

MR BASTEN:   That is right.  Well, that is the Tribunal’s feeling.

HIS HONOUR:   Strange things happen in times of conflict.

MR BASTEN:   Yes.

HIS HONOUR:   Yes.

MR BASTEN:   And if that is all the Tribunal is finding, then it is not a terribly serious complaint about what the solicitor has said because the solicitor says it is a guess.  But, your Honour, even supposing that there were some finding that they had, as it were, created an untrue story as a factual basis for the claim, the question remains whether there is an error of procedural fairness in failing to explain more precisely the doubts which had arisen in the Tribunal’s mind prior to making a determination.  The passage that I referred to in the written submissions was in Abebe, I think, your Honour, paragraphs 186 and 188, where that point was made on the facts of that case.  But as my friend says, there are differences in the situation in Abebe.  Abebe 197 CLR 510 and the passage in the joint judgment of Justices Gummow and Hayne is at page 576.

HIS HONOUR:   Yes, I have that.

MR BASTEN:   Paragraphs 187 to 188 are really the paragraphs.

HIS HONOUR:   So your submission, as I understand it, is, first, that the Tribunal did, in fact, signal a doubt about what was being said in a polite way, but it was signalled, and, second, that in any case in this form of tribunal there is no absolute requirement to go into chapter and verse about doubts, some of which may formulate only later; the matter is one of degree and has to be judged in the particular circumstances of the case.  The only question that is troubling me a little is the use of the word “concoction”.  It is a strong word.

MR BASTEN:   Yes.

HIS HONOUR:   Should not the Tribunal before expressing that view, not only because it was a solicitor involved but just generally, have said, “Well, frankly, I think this is rubbish.  This is a concoction.”  Then let the witness say, “Well, that is a mistake because” this and that aspect of the evidence.

MR BASTEN:   Your Honour, might I come back to the transcript because this was not, of course, only dealt with with the solicitor, as your Honour noted.  The transcript is annexure B to my friend’s solicitor’s affidavit.

HIS HONOUR:   Yes, I have that.  What page?

MR BASTEN:   At page 4.  There is a lengthy statement where the page begins where Dr Witton, the Tribunal member, is setting out some background information he wants comment on and then at about point 7, he says:

My question is if they had this information wouldn’t they have acted politically against you much earlier and it would have not taken the form, I would think, of just stealing property from you but of detaining you and even worse.  Do you want to say anything?

HIS HONOUR:   That is exactly what he later goes on to state in his reasons.

MR BASTEN:   His reasons, yes.

HIS HONOUR:   There can be no complaint about that.  Indeed, that is entirely appropriate, but the question is whether he should have added, “Do you want to say anything about my inclination to think that you have simply tossed this in at the last minute as a concoction or an invention?”

MR BASTEN:   Your Honour, we have not, I think, been given the statement made by the applicant which raises this matter, although it is summarised in the Tribunal’s reasons in some detail, but the reason I took

your Honour to Mr Sandroussi’s was because it was clear from those paragraphs at that end, which were the critical paragraphs, that he is saying, “I can’t explain what happened but my guess is”, and if that is really all that is – your Honour may think it is inappropriate to describe that as a concoction, to say that a guess or speculation is being put forward in a way which is simply unacceptable or in implausible, but the only point I was seeking to make is that that seems to be the context in which he says that.

HIS HONOUR:   Yes.

MR BASTEN:   If it is loose language, it is loose language and it does not give rise to a reasonably arguable case of jurisdictional error, with respect.  Your Honour, I think really those are the matters I sought to deal with in addition to the written submissions.  Did your Honour want me to say anything about the way the privative clause operates in this circumstance?

HIS HONOUR:   I do not think so, no.

MR BASTEN:   I do not think it will affect the way it is dealt with.

HIS HONOUR:   Yes.  Is there anything in reply?

MR DE ROBILLARD:   Just very shortly, your Honour.  At page 5 of the transcript, your Honour, my learned friend just took your Honour to the question put by the Tribunal at page 4, where he says:

My question is . . . wouldn’t they have acted politically ‑ ‑ ‑

HIS HONOUR:   I am sorry, where are we?

MR DE ROBILLARD:   At page 4 of the transcript.

HIS HONOUR:   I have page 4 of the transcript.  I see.

MR DE ROBILLARD:   Yes, at about point 7 where Dr Witton asked the question which my friend just read to your Honour.

HIS HONOUR:   Yes.

MR DE ROBILLARD:   Over the page at page 5 at about point 5 your Honour will see there that the answer from the applicant is:

Then…..I come to Australia and I met Tony –

Tony meaning the solicitor, Mr Sandroussi – and his explanation is it is only when he came back home that he understood what had happened and that is, we say, supporting the basis of our case.  In other words, that is the explanation, your Honour, and that is not explored further by the Tribunal here.

HIS HONOUR:   But it is a little odd, as the Tribunal says, to suggest that the response to discovering that a person is a spy, who for some time has been providing military intelligence to your opponents in a matter of deadly battle, where people die, is that they take a bit of money off him.  It does not seem ‑ ‑ ‑

MR DE ROBILLARD:   Well, the context is slightly different, your Honour.  The context is that this was after there was a civil war.  This is now in time of peace where the Lebanese Forces have now become a political force, not a military force, and ‑ ‑ ‑

HIS HONOUR:   Perhaps I am getting down into the merits of it.

MR DE ROBILLARD:   Yes, your Honour.

HIS HONOUR:   But the point is that it was open to the Tribunal to say, “Well, here is a man in the military.  If you are really talking about persecution of a person, then it is really stretching credibility to say that the persecution for giving military intelligence that has led to the risk, if not the death, of your colleagues is just taking a bit of money.”

MR DE ROBILLARD:   Your Honour, two points about that:  first of all, as I pointed out in the submissions in reply, at paragraph 13, part of the explanation – and, again, we are going into details, but part of the explanation may well be that the factory was employing Alawi Sect people who were of the same sect as the officers.

HIS HONOUR:   Your client is a Christian.

MR DE ROBILLARD:   Christian – Maronite Christian.

HIS HONOUR:   The Alawi Sect are a sect of Islam?

MR DE ROBILLARD:   That is so, your Honour.  And the Syrian – and that is found in the Tribunal’s reason where the Tribunal simply sets out those facts put forward by the applicant but does not comment one way or another on it.  And he is saying part of the explanation may well be, “Now that I know all this, that they were trying to extract money from me, because eventually they wanted me to leave and the factory would go to the Alawi Sect people who were of the same sect as the soldiers.” 

Your Honour, if one looks at Chen Shi Hai, your Honour himself refers to some relevant matters there as to the – it is 201 CLR 293.

HIS HONOUR:   Yes, I have that.  What paragraph?

MR DE ROBILLARD:   For instance, your Honour, at paragraph 69 of your Honour’s judgment when your Honour covers the causation point.  Your Honour refers to an English case, a speech of Lord Hoffmann in R v Immigration Appeal Tribunal; Ex parte Shah and towards the middle of that passage there, Lord Hoffmann refers to:

A Jewish shopkeeper is attacked by a gang organised by an Aryan competitor ‑ ‑ ‑

HIS HONOUR:   Yes, but what is the point you are making?

MR DE ROBILLARD:   The point of this, your Honour, and as your Honour himself states in Chen Shi Hai is that persecution has many aspects and many ways of being applied and that is what Chen Shi Hai ‑ ‑ ‑

HIS HONOUR:   That is true but the question here is, “Is there persecution?”, and in tackling that question the Tribunal is entitled to look at the issue with a degree of rationality and say, “I just do not feel that an isolated officer taking some money, which I accept is extortion, is evidence of persecution.  I think it is just this person trying to enrich themselves as, unfortunately, is commonly the case with officials in many countries.”

MR DE ROBILLARD:   Yes, your Honour, but the claim here is not an isolated incident.  We say it is an issue that went on from 1998, 1999 and slightly earlier and it was not from one officer.  In other words, when he was refused, he assaulted the applicant and then came back with five other soldiers the next day, and so on.  So, it was not just one officer simply extorting money but it was the Syrian Forces in the area.  But, in any event, your Honour, the Tribunal then does not address the issue, “Is this persecution within Chen Shi Hai?”  It simply waves away the whole thing by saying, “There is a lack of credit and therefore I do not need to address the real substantial claim.”

The last point, your Honour, is this:  my friend took your Honour to a passage on page 22 of the Tribunal’s reasons and put the submission that all the Tribunal was doing there was to simply refute the speculation by Mr Sandroussi as to why there was extortion.  But, in my respectful submission, your Honour, if one reads that paragraph on page 22, which is at about point 4, what the Tribunal there says is:

In making these findings –

namely, all the findings which my friend took your Honour to before –

the Tribunal also finds a lack of credibility on the part –

in other words, he has already rejected the other findings as being not mere speculation, but then he says in addition:

the Tribunal also finds a lack of credibility on the part of the applicant and the witness in that it was only just before the hearing that they advanced their argument –

and he calls it an argument when, in my respectful submission, that ought to be evidence that they were giving, and he sees it as an argument –

that the applicant’s problems were as a result of the Syrians being for many years in possession of information that the applicant had acted as an LF spy.  The Tribunal finds support for its belief that this evidence was recently concocted to strengthen the applicant’s case, in the fact that, despite their having had considerable time –

and he focuses again on this lateness, your Honour.  He says:

despite their having had considerable time in which to present their statutory declarations, this material has only been presented in the last few days before the hearing.  The Tribunal in making this finding finds as unconvincing the witness’ argument –

again, the creditability of Mr Sandroussi, and he calls it again an argument –

that the delay was caused by his concern with his mother’s health since December 2000.

In other words, your Honour, he makes that a focal point of his rejection of the credit, not only of the witness, but of my client, and he uses the strong term “concocted”.  Now, granted, as your Honour says, within the Tribunal one ought not use those strong terms but, equally, your Honour, one ought not throw away someone’s case and then use such strong terms without at least – and then use such strong terms in the published reason without giving the witness and the applicant some opportunity to comment specifically on that issue of whether it is a concoction or not.

So, those are my submissions, your Honour.

HIS HONOUR:   Yes.  Well, I will just take a little time to consider what I will do in this matter and I will try to get back within about 20 minutes or so.

MR DE ROBILLARD:   If the Court pleases.

HIS HONOUR:   Court will adjourn.

At 11.11 AM SHORT ADJOURNMENT

UPON RESUMING 11.46 AM:

HIS HONOUR:   I have before me an application for an order nisi for the constitutional writ of prohibition directed to the Minister for Immigration and Multicultural Affairs (“the Minister”), to the Member constituting the Refugee Review Tribunal (“the Tribunal”) in this case, and to the Principal Member of the Tribunal.  Also sought is the constitutional writ of mandamus directed to the Minister and a writ of certiorari to quash the Tribunal’s decision concerning the applicant.

The Tribunal member and the Principal Member have each submitted to the orders of this Court.  The Minister contests the issue of an order nisi for the relief claimed. 

The statutory setting of the application

The application is brought by an applicant for refugee status who seeks a protection visa (“the applicant”).  He has sought relief under the Migration Act 1958 (“the Act”). His name may not be identified. The application relates not only to the applicant but also to his wife. However, it was agreed by both sides that the position of the wife is dependent on that of the applicant. I shall not therefore deal with her case separately.

The application for a protection visa was first made in accordance with the Act to the delegate of the Minister. On 16 March 2000, the delegate refused the grant of the visa. The applicant then sought review of that refusal by the Tribunal. On 23 August 2001 the Tribunal affirmed the decision not to grant the protection visa.

There is an affidavit of the applicant’s solicitor to the effect that no judicial review has been sought in relation to the decision of the Tribunal, save for this application to this Court. This fact is said to be relevant to Part 8 of the Act, introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Schedule 1. That amending Act commenced, relevantly, on 2 October 2001.

It is accepted for the Minister that the Migration Legislation Amendment Act [No 1] 2000 (Cth), Schedule 1 item 4, purporting to limit the time in which the constitutional writs may be sought from this Court for unlawful or invalid action on the part of an officer of the Commonwealth, does not apply to this case. Accordingly, it is unnecessary for me to consider the scope and validity of that provision.

A possibly important question is raised by the proceedings. This concerns the validity and, if valid, the effect of a privative provision introduced into the Act by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Schedule 1 part 1, item 7. (See s 474 of the Act as so amended.) That provision purports to validate decisions of the Tribunal which do not conform to the requirements otherwise governing the Tribunal concerning its proceedings. However, that question only arises as a live one in the present proceedings if the applicant has otherwise established a reasonably arguable case for constitutional or other relief. I therefore put the privative provision to one side whilst turning to the case which the applicant propounded.

Three propounded grounds of relief

The applicant advances three grounds for the issue of relief, namely:

(a)  denial of natural justice;

(b)  other jurisdictional error, and

(c)  error of law. 

Suggested jurisdictional error

I will deal first with (b) for I think it can most easily be disposed of.  The submissions made by the applicant to advance this ground are not, in my view, reasonably arguable.  They were not really advanced in oral submissions before the Court today.  They constitute complaints about particular inferences drawn by the Member constituting the Tribunal when disposing of the applicant’s case.

This Court has said repeatedly that it is impermissible to turn proceedings for the constitutional writs and associate relief into what amount to appeals against the factual merits of a case or a rehearing by the court exercising judicial review of the merits of the matter at first instance.  See, for example, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341, 356; Attorney‑General v Quin (1990) 170 CLR 1 at 35‑36; and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 291. That is what I believe ground (b) seeks to do. To establish jurisdictional error of the kind suggested in ground (b) it is necessary for an applicant to show, relevantly, that there were so many, or such serious, errors of fact‑finding that the exercise of the Tribunal’s powers has miscarried. In effect, it would be necessary to show that the Tribunal had failed to address the claims of the applicant or made no bona fide attempt to exercise its statutory jurisdiction.

In the present case, on the material before me, these propositions cannot be shown as reasonably arguable.  At most, it is arguable that the Tribunal drew the wrong factual inferences, made a mistaken assessment as to the credit of the applicant and a witness or was not sufficiently sympathetic to the applicant.  But such errors, even if they existed, would not constitute proof of jurisdictional error.  Ground (b) is therefore rejected.

Suggested breach of natural justice

I turn to ground (a).  This concerns a complaint that the Tribunal failed to accord the applicant natural justice.  Such a failure can itself amount to jurisdictional error.  It can therefore sustain the issue of a constitutional writ.  See Re Minister for Immigration and Multicultural Affairs, Ex parte Miah (2001) 75 ALJR 889; 179 ALR 238.

Inherent in the applicant’s claim in this respect is the suggestion that the Tribunal failed to advise the applicant that it had doubts about the evidence of the applicant and the evidence of a witness called to support him.  That witness is a solicitor.

A study of the transcript of the proceedings before the Tribunal shows that the Tribunal did, as a matter of fact, indicate during the hearing doubts about that evidence.  However, I shall assume for the purposes of the argument that there was an omission in this case to make the doubts abundantly clear.  Signalling an inclination to disbelieve a witness is a permissible course.  It is not compulsory in every eventuality.  What is required depends on the circumstances of the evidence and of the case.  cf Abebe v The Commonwealth (1999) 197 CLR 510 at 576, [187]–[188].

Sometimes a fatal flaw in a witness’s testimony will not have made a sufficient impact on the mind of a decision‑maker until after the hearing is complete, when there is time for reflection about all of the testimony and how it fits together.  I see no procedural flaw in the conduct of this hearing by the Tribunal Member such as would warrant the intervention of this Court on this score.

The applicant’s claim for refugee status was based on an asserted fear of persecution for religious or political grounds.  In support, the applicant relied on evidence of suggested extortion by Muslim Syrian military officers in Lebanon, allegedly on the grounds of the applicant’s Christian religion or, as was belatedly suggested, on the basis of the fact that the applicant had acted as a spy and supplied military intelligence to the Lebanese Forces concerning military deployments by the Syrian Army.

The allegation of persecution for a religious belief fell away in the course of the proceedings.  I will therefore put that to one side.  The Tribunal accepted that there had been extortion, as the applicant contended.  However, it concluded that such extortion had been motivated by greed, not by the applicant’s religion or his status as a spy.  The Tribunal specifically rejected the evidence of the applicant and his witness about the suggested military intelligence as bearing on the second propounded ground of persecution.

In rejecting that evidence, the Tribunal described the evidence about the applicant’s suggested part in military intelligence gathering as “contrived” and as a “concoction”.  For the applicant it was argued that these were the kinds of conclusions that should have been put to the applicant and his witness during the hearing before being stated, as they were, in the recorded decision of the Tribunal.  Had that been done, it is said, the applicant and his witness could have elaborated the testimony and met the contention that their evidence was “contrived” and a “concoction”.

It is important to say again that the Tribunal did, in fact, signal, both to the applicant and to his witness, its scepticism about the evidence.  The Tribunal Member specifically put his ultimate conclusion, namely that it was far-fetched to suggest that a response to a conclusion that the applicant was a spy would be merely isolated acts of extortion by Syrian military officers.  It is important to observe that the present is not a case in which to consider the consequences, if any, of a finding that a solicitor had “concocted” evidence.  “Concoction” is not a word that I would have used in the circumstances.  However, it was not obligatory for the Tribunal to do more than it did in bringing its doubts about the evidence to the attention of the applicant and his witness.  It is clear from the transcript, and in any case self‑evident, that this was a vital part of the evidence which the applicant sought to prove.  He endeavoured to do so in circumstances where the evidence had emerged just shortly before the hearing before the Tribunal.

The issue of where the truth lay in the applicant’s claims represented a factual question for assessment by the Tribunal as the statutory body entrusted by the Parliament with the responsibility of decision‑making in that respect.  I see no reasonably arguable basis for the claim of jurisdictional error for failure to accord the applicant natural justice in the circumstances of the case. 

The further complaint that the Tribunal Member expressly said that he would assume that the witness was telling the truth is not a separate foundation for relief on this ground.  That was a response to something that had been said to the Member.  It was not, and could not be, a statement of an ultimate conclusion made in circumstances that could lull the applicant into a false confidence.

Suggested error of law

This leaves ground (c), error of law.  On this ground the applicant asserted that the Tribunal had failed to apply the principles established by this Court in Chen Shi Hai v The Minister for Immigration and Multicultural Affairs (2000) 201 CLR 273. In this respect, the applicant referred to a suggested misunderstanding about the meaning of “persecution” in the Refugees Convention, as incorporated in the Act. I see no such failure or misunderstanding on the part of the Tribunal.

Complaint was made about the statement that the State did not have the ability to provide effective protection from all forms of harassment and extortion.  But in the context, this statement followed the finding by the Tribunal rejecting the contention that the harassment and extortion, which were found in the applicant’s favour, were based on grounds of political opinion or religious belief, or amounted to persecution within the Convention.  Those findings were open to the Tribunal on the evidence.  The Tribunal’s findings are therefore impregnable in this Court, limited as the Court is to the remedies of judicial review.  As a matter of law, the Tribunal’s findings on credibility and fact justified the conclusion and decision of the Tribunal. There is no reasonably arguable error of law.

Conclusion and orders

Having rejected the three grounds propounded for relief, it is unnecessary in this case to consider the question that would otherwise be raised as to the effect and validity of the new privative provisions of the Act. Such consideration must await another case where those provisions have a practical consequence.

The application for constitutional and other relief must be rejected.  The applicant must pay the Minister’s costs.  I certify for the attendance of counsel in chambers.

MR DE ROBILLARD:   If the Court pleases.

MR BASTEN:   If the Court pleases.

HIS HONOUR:   The Court will now adjourn.

AT 12.01 PM THE MATTER WAS CONCLUDED