Prosecutors 1,2,3 & 4, Ex Parte - Re MIMA & Ors S196/2001

[2001] HCATrans 626

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S196 of 2001

In the matter of -

An application for Writs of Certiorari Mandamus, Prohibition and an Injunction against PHILIP RUDDOCK in his capacity as THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

The REFUGEE REVIEW TRIBUNAL as constituted by SUE ZELINKA

Second Respondent

PETER NYGH in his capacity as the Principal Member of the REFUGEE REVIEW TRIBUNAL

Third Respondent

Ex parte –

PROSECUTOR 1, 2, 3 and 4

Applicants

GLEESON CJ
McHUGH J
GUMMOW

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 29 NOVEMBER 2001, AT 10.16 AM

Copyright in the High Court of Australia

________________

MR D.D. KNOLL:   Your Honours, I appear for the prosecutors in the matter.  (instructed by Ebsworth & Ebsworth)

MR N.J. WILLIAMS, SC:   I appear for the first respondent, your Honours.  (instructed by Blake Dawson Waldron)

GLEESON CJ:   There is a certificate from the Deputy Registrar that she has been informed by the solicitors for the second and third respondents that the second and third respondents do not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs.

Mr Knoll, I notice that the convention has been adopted by the parties of describing your clients as prosecutors.  I am not referring to the anonymity but to the fact that they do not yet have the status of prosecutors - they are applicants – but we might as well continue with the description of them in references to the title to the proceedings, as Prosecutors 1, 2, 3 and 4.

MR KNOLL:   If it please the Court.

GLEESON CJ:   Yes, Mr Knoll.

MR KNOLL:   Your Honour, I have spoken with my friend and I need to formally move on the notices of motion dated 16 and 23 November 2001.  I propose to read some affidavits and then hand to the Court a short document that we believe between us has resolved my friend’s objections to our evidence.

GLEESON CJ:   Thank you.

MR KNOLL:   I read, first, the affidavit of the second prosecutor, dated 17 September 2000 which appears in the application book at pages 189 to 302, and formally tender the application book.

GLEESON CJ:   I am sorry, what do you tender?

MR KNOLL:   The application book which I understand has been filed with the Court and your Honours would have.

GLEESON CJ:   Why would you tender the application book?

MR KNOLL:   My friend indicated that was an appropriate formal step.

GLEESON CJ:   Why do you not just read the affidavit.  Is there any objection to the affidavit, Mr Williams?

MR WILLIAMS:    There is, your Honour, but it has been the subject of discussion and certain paragraphs are not to be pressed and others pressed only on a limited basis, and subject to that I have no further objection to the affidavit.

GLEESON CJ:   Right.  Now, Mr Knoll, why do you not take us through the affidavit and tell us what parts of it – before we read any of it – are not pressed and what parts are pressed on a limited basis.  What page is this again?

MR KNOLL:   Your Honour will find the affidavit commencing on page 189.

GLEESON CJ:   Yes, thank you.  Which paragraph do you not read?

MR KNOLL:   Your Honour, there is firstly an objection to paragraph 11 and that is not pressed.

GLEESON CJ:   No read.  Yes.

MR KNOLL:   There was an objection, your Honour, to paragraph 15, which I understand is withdrawn.  It is withdrawn

GLEESON CJ:   Yes.

MR KNOLL:   In relation to paragraph 16, the words on the second line from “and said to us words” to the end are not pressed.

GLEESON CJ:   Can you say that again, please?

MR KNOLL:   Yes, your Honour.  On the second line, after the word “medication” appear the words “and said to us words to the following effect”; from those words to the end of the paragraph it is not pressed.

GLEESON CJ:   Thank you.  So it ends at “medication”?

MR KNOLL:   That is correct, your Honour.

GLEESON CJ:   Yes.

MR KNOLL:   Paragraph 17 was objected to and I understand that objection is withdrawn.  Paragraphs 19 and 21 are not pressed.

MR WILLIAMS:   Paragraph 19 to 21.

MR KNOLL:   Paragraph 20 is not pressed but I should indicate, as I have to my friend, that I will be referring to page 200 of the appeal book which deals with the same subject matter.

GLEESON CJ:   Thank you.

MR KNOLL:   In relation to paragraph 24, only the first sentence is pressed.  In relation to paragraph 27, it is not pressed and I should indicate to the Court, as I have to my friend, that I will be referring to pages 67 and 78 in the application book.  Paragraphs 28 to and including 32 are not pressed.  Paragraph 33, along with annexure D, which is referred to in it, are pressed on the issue of discretion only, for the limited purpose of demonstrating the prosecutors’ efforts to recover their mental health and prepare for and attend a hearing on any remitter, and I will take the Court in due course to page 201 of the application book.  The respondent objects as to relevance but accepts that the Court should receive the document and the paragraph subject to relevance.

GLEESON CJ:   Thank you.

MR KNOLL:   Paragraphs 34 through to 40 are not pressed.  Paragraph 47 is not pressed.  In relation to paragraph 49, the last sentence is not pressed but the balance is.  In relation to paragraph 52, the words that are pressed commence with “we were very depressed”.  So, the sentence would read, “We did not attend the hearing on 13 February 2001 because we were very depressed”.

Your Honours, in relation to paragraph 55, on the first line after the date 14 March 2001, the words “having not heard from the Second Respondent” are not pressed and I have agreed with my friend to take the Court to the document that appears at pages 114 to 116 ‑ ‑ ‑

McHUGH J:   What is the paragraph again, Mr Knoll?

MR KNOLL:   I am sorry, your Honour.  Paragraph 55.  You would delete the words “having not heard from the Second Respondent”, and I should indicate, in fairness, having said to my friend, I will take the Court to different pages of the application book dealing with the same point.

In relation to paragraph 56, the last sentence is not pressed and the same pages of the application book will be referred to.  In relation to paragraph 58, the paragraph should now read, “On 27 March 2001 we did not attend the hearing.  Neither my husband nor I was well enough to attend the hearing.”  And annexure E is not pressed.

GLEESON CJ:   Yes.  That covers that affidavit, does it?

MR KNOLL:   That covers that affidavit, your Honour.

GLEESON CJ:   Yes, we have read that affidavit.

MR KNOLL:   Thank you, your Honour.  The next affidavit is the affidavit of the second prosecutor of 31 October 2001, which appears at the application book, commencing at page 303.  I understand there are no objections to that affidavit.  Would it help the Court if I handed up a short summary of the resolution of objections?

GLEESON CJ:   No.  You have dealt with them now, have you not?

MR KNOLL:   Thank you, your Honour.

GLEESON CJ:   Just give us a moment to look at this affidavit.  Thank you.

MR KNOLL:   Your Honour, I next read the affidavit of the second prosecutor of 22 November 2001, which relates to the question of suppression.  That is not in the application book.  It was sworn subsequently.

GLEESON CJ:   Is this to do with identity?

MR KNOLL:   Yes, your Honour.

GLEESON CJ:   Now, that is not a contentious matter, is it, Mr Williams?

MR KNOLL:   I understand it is not.

MR WILLIAMS:   No, your Honour.

GLEESON CJ:   What are the actual orders that you seek?  Is it in the notice of motion dated 21 November 2001?

MR KNOLL:   It should be, your Honour.  Will you excuse me just a moment, I have mislaid my copy?

GLEESON CJ:   I think we are content to make the orders that you seek.

MR KNOLL:   If it please the Court.

GLEESON CJ:   All right, we will make the orders sought in the notice of motion dated 21 November 2001.  I had better just draw the attention of the Deputy Registrar to the fact that paragraph 2 of the notice of motion will need to be taken account of in any publication of any reasons for judgment in this matter.  As to order 1 there, Mr Knoll ‑ ‑ ‑

GUMMOW J:   You want the whole Court file to be in an envelope to be opened and reopened?  It looks like an impossibility to me.

MR KNOLL:   Your Honour, it is to secure the identity of my clients and if it needs to be varied we are content with that.  I think I can anticipate what your Honour’s concern is.

GUMMOW J:   It seemed to me if you have 2 and 3, you have enough.

GLEESON CJ:   What is the object of 1?  It is to prevent strangers to the parties to the proceedings coming along ‑ ‑ ‑

MR KNOLL:   That is all it is, your Honour.  There is no complaint with the parties, their solicitors having access.

GLEESON CJ:   And you do not contemplate, as I would understand it, there has to be an order in the Court every time somebody in the Registry wants access to the file for the purpose of ‑ ‑ ‑

MR KNOLL:   No, your Honour.  Order 1 might be modified and I perhaps incorrectly anticipated your Honour Justice Gummow’s suggestion – I am sorry, I misspoke.  I withdraw that, your Honour.  The object of order 1, to

clarify it, is to ensure that, indeed, strangers or third parties do not access the file and discover the identity of my clients.  If order 1 might be varied to indicate that persons, who are not parties or their legal representatives, ought not have access to the file, that would be quite sufficient.

GUMMOW J:   You need an order that no stranger will have access to the file without the order of a Justice.  Is that not enough?

MR KNOLL:   Your Honour, that would be sufficient also.

GLEESON CJ:   Why do not you and Mr Williams have a word about a possible reformulation of order 1.  We will make orders in terms of paragraph 2 and 3 of your notice of motion and, in principle, we are agreeable to order 1, provided it does not work in a way that unduly onerous.

MR KNOLL:   I appreciate the concern, your Honour.

GLEESON CJ:   So, you can have another go at that.

MR KNOLL:   Perhaps over the tea break Mr Williams and I might resolve that.

GUMMOW J:   We do not have a tea break.

MR KNOLL:   Might we then approach the Court at the end of the matter, accordingly?

GLEESON CJ:   Yes, thank you.  Yes, Mr Knoll?

MR KNOLL:   The next affidavit is the affidavit of Susan Anne Doherty, sworn 16 November 2001, which appears, commencing at page 324 of the application book.

GLEESON CJ:   Yes, we have read that.

MR KNOLL:   Your Honour, the remaining item concerns documents in relation to which my friend wishes to move a motion, and I am content to take the floor to my friend at this point.

GLEESON CJ:   All right.  Well, let us deal with that now.  You have a notice of motion, Mr Williams, dated 28 November?

MR WILLIAMS:   Yes, your Honour.

GLEESON CJ:   Are we going to get a look at this folio 83?

MR WILLIAMS:   We have it available, your Honour.

GLEESON CJ:   I get the impression that the other folios are merely about folio 83.

MR WILLIAMS:   That is so, your Honour.

GLEESON CJ:   Can you just remind us what the evidence is about folio 83?  Is there evidence as to whether it was looked at by the Tribunal member?

MR WILLIAMS:   The extent of the evidence is a reference in a letter from the Freedom of Information officer of the Tribunal which is contained at page 107 of the book at about line 45.

GLEESON CJ:   Thank you.

MR WILLIAMS:   That is the extent of the evidence.  The other correspondence, as your Honour the Chief Justice observes, concerns folio 83, and it was with a different area of the Tribunal, the Freedom of Information officer.

GLEESON CJ:   Now, that statement, “it had been seen by the Tribunal reviewing your application”:  there were two Tribunal reviews of this application.  There was the one that ultimately resulted in proceedings in the Federal Court and there is the one with which we are concerned.  Is that a reference to the first or the second or to both of those?

MR WILLIAMS:   From the chronology, your Honour, I think it would have to betaken to be a reference to the second.

GLEESON CJ:   Right, and the word “Tribunal” we can take to mean “Tribunal member”?

MR WILLIAMS:   In context, that appears to be its meaning.

GLEESON CJ:   Thank you.  Are we going to see folio 83?  Has Mr Knoll seen it?

MR WILLIAMS:   Yes, your Honour.

MR KNOLL:   Your Honour, I should indicate I have just been handed it and have only had a very brief look at this point.  I did have an opportunity to inspect it when the matter was before the Federal Court but handed it back on that day.

GLEESON CJ:   Right.

MR WILLIAMS:   If I might have leave to hand up the original and three copies of exhibit SAH1 confidential.

GLEESON CJ:   Thank you.

MR WILLIAMS:   I should indicate folio 83 is the last of the pages of the exhibit.

GLEESON CJ:   The purpose of this letter appears in the concluding sentence, I gather?

MR WILLIAMS:   That, and we say, is the only purpose.

GUMMOW J:   What is the reason for it being confidential?

MR WILLIAMS:   That is in the succeeding communications.

GUMMOW J:   I see.

MR WILLIAMS:   The author of the document is asked first, as recorded in the file note, at about point 5 of the file note, the entry for 20 February 2001.

GUMMOW J:   It is really to protect the confidential position of the person writing the letters to the Tribunal, is it not?

MR WILLIAMS:   That is so, the fact of communication and the opinion expressed.  That is reiterated in the first appearing of the documents in the exhibit, that being a letter of 28 February 2001 which bears the word “confidential” at the top.

GUMMOW J:   Thank you.

GLEESON CJ:   Obviously, the member referred to in this document is the first.

MR WILLIAMS:   That is so, in this document, yes.  The member referred to in the first letter is the first Tribunal member.

GLEESON CJ:   This is the letter, access to which was denied under the Freedom of Information Act?

MR WILLIAMS:   Each of these communications was the subject of a denial.

GLEESON CJ:   Just remind us, there was some internal review about that?

MR WILLIAMS:   There was, which affirmed the position.

GLEESON CJ:   Then there was litigation commenced but not pursued to finality, is that right?

MR WILLIAMS:   No, there was a right of merits review in the Administrative Appeals Tribunal.  That was not exercised.  It did, the prosecutors say, occur after the Tribunal’s decision, that is to say, the right to appeal arose.

GLEESON CJ:   There was never any review of this Freedom of Information Act decision except an internal review?

MR WILLIAMS:   That is so.

GLEESON CJ:   The first of the documents in this bundle bears a date - I am just having a look at the chronology again - preceding a number of the events relevant to the history of this matter.  The name of the Tribunal member is written on the top of it, amongst a number of other names, do you see that?

MR WILLIAMS:   I do not, your Honour.

GLEESON CJ:   I am going to put a ring around it and hand you down my copy.

GUMMOW J:   There is a box, stamped, do you see that?

MR WILLIAMS:   I am sorry, your Honour is indicating the blank box?

GLEESON CJ:   You call it blank, it is a stamp.

MR WILLIAMS:   I am sorry, I had taken your Honour the Chief Justice to be referring chronologically to the first of the documents.

GUMMOW J:   We are referring to folio 211.

GLEESON CJ:   Yes.

MR WILLIAMS:   I am sorry, your Honour, yes.

GLEESON CJ:   The point I want to make, if it is correct and I invite your comment on it, is that it appears from internal evidence in this document that this document was also sent to the Tribunal member before she made the decision.

MR WILLIAMS:   If your Honour is referring to the name of the Tribunal in the box, we do not accept that inference arises that identifies the member.

GLEESON CJ:   I am very surprised that you do not accept that because I would have thought that what this letter does is explain something that had been said in the previous letter in a manner, I would have thought, you would want to embrace.  Have you read this letter?

MR WILLIAMS:   I have, your Honour.  Yes, I am sorry, I withdraw that submission.

GLEESON CJ:   If you have a look at the concluding paragraph on the bottom of folio 211, I would have thought it explains what is meant by an expression that appears in folio 83.

MR WILLIAMS:   Yes, we accept that, your Honour.  Your Honour, we formally read the affidavit of Ms Hanstein and draw attention to paragraph 8 which indicates that the assertion as to confidentiality is maintained by the author.

GLEESON CJ:   All right.  What do you have to say about this, Mr Knoll?

MR KNOLL:   Your Honour, may I put our position in two alternative ways.  The first is that it being accepted that the letter, and indeed each of these documents, was not provided to my clients by the Tribunal at any time prior to decision, the withholding of them underpins ground B of the application.  The second proposition is if, as a fall‑back position if that is not persuasive, if it is necessary to refer to the content of the letter to assess the degree to which it had any impact on the Tribunal’s decision which, principally, we do not accept as correct in law, then the Court should receive the letter and assess that.  Equally, I will need to obtain instructions from my client in relation to the degree of criticality issue, and for that purpose they ought to be entitled to see the document in order to give me instructions.

GUMMOW J:   What is that second basis again?

MR KNOLL:   Your Honour, if the Court were to accept the proposition that ground B of the application which relates to the withholding of those documents ‑ ‑ ‑

GUMMOW J:   This is a fall‑back position?

MR KNOLL:   It is, your Honour.

GUMMOW J:   Yes, now what is the fall‑back position?

MR KNOLL:   The fall‑back position is if the Court needs to assess the degree of criticality of the documents in order to rule on ground B, then the Court needs to see the content of the document and it should be received.  In that instance I will need to obtain instructions which, hitherto, I could not possibly have obtained from my clients.

GLEESON CJ:   Instructions about what?

MR KNOLL:   The degree of criticality of the comments made here in the context of the other documents they have put before the Tribunal.

GLEESON CJ:   I am not sure what you mean by that.  By criticality, you mean criticality to the member’s decision?

MR KNOLL:   Yes, your Honour.

GLEESON CJ:   How is your client in a position to give instructions on that?

MR KNOLL:   The question that would then arise is were my client to have been able to see this before the Tribunal made a decision, could my client have put forward anything by means of response that could have ensured that the document had no possible impact on the Tribunal’s decision.

GLEESON CJ:   That assumes that it could have had a possible impact on the Tribunal?

MR KNOLL:   Yes, your Honour, it clearly does and that is why I am saying it is a fall‑back position.

GLEESON CJ:   Yes, we will make the orders sought in the notice of motion dated 28 November 2001.  Is that the whole of the evidence?

MR WILLIAMS:   Your Honour, I am not sure whether my friend tendered the documents referred to in the chronology “Agreed facts”.  If he did, that is the whole of the evidence as I understand it.

GLEESON CJ:   Let me look at that chronology again, Mr Williams.  What document, which are the ‑ ‑ ‑

MR WILLIAMS:   If your Honour sees the application book references.

GLEESON CJ:   Yes, give us an example of the document you have in mind.

MR WILLIAMS:   Your Honour, any of the documents referred to.  The agreed chronology or statement of facts is not, of itself, complete, it relies as well on the documents to which ‑ ‑ ‑

GLEESON CJ:   Just give me one example of the document you are worried about.

GUMMOW J:   Are these not taken from the findings of fact in the Tribunal’s decision?

MR WILLIAMS:   Yes, your Honour, they are.

GLEESON CJ:   I do not see any problem about this.

GUMMOW J:   No.

GLEESON CJ:   If a problem arises in due course, then you or Mr Knoll can let us know and we will deal with it, but just at the moment I do not see a problem.

MR WILLIAMS:   Yes, may it please the Court.

GLEESON CJ:   Is that the whole of the evidence?

MR KNOLL:   Your Honour, on that understanding, it is.

GLEESON CJ:   All right, well it is time for your address, Mr Knoll.

MR KNOLL:   Your Honour, the core of the application is an application that says, in its simplest terms - and I will elaborate on it in due course - that a person who applies for a merits review before an administrative tribunal that operates inquisitorially, must be given a useable opportunity - as put in the case of Re Polemis, which I will come back to - to get their tackle together.  It is the case of the applicants that that did not happen in this instance by reason of their mental illness which was known to the Tribunal.

In particular, what my clients sought was an opportunity, primarily for the first prosecutor but secondarily for the second prosecutor, to recover mental health and then, with the benefit of proper disclosure of the material that the Court has just received, to prepare for and attend a fair hearing principally in relation to the issue that was presented to them by the Tribunal member on 17 November 2000.  There are two sub‑issues in ground A, and I will come to grounds B and C momentarily.  The first is ‑ ‑ ‑

GLEESON CJ:   Incidentally, just to facilitate discussion between us, correct me if I am wrong but I do not understand that there is anything in the confidentiality orders that have been made to prevent reference, without mentioning the names of your clients, to their country of origin, to the circumstances that are alleged to have given rise to their fear of persecution, to their movements after they left their country of origin, except the precise date on which they arrived in Australia?  Is that right?

MR KNOLL:   I think, strictly speaking, that will be so, your Honour, yes.  Might I flag two sub‑issues please, in relation to ground A.  The first is the question of unfitness by reason of mental illness, as to which ‑ and I will come back to momentarily ‑ ‑ ‑

GUMMOW J:   That presents a question of fact, does it not, at particular times?

MR KNOLL:   Yes, your Honour, and it therefore underpins the second sub‑issue, which is, did the Tribunal deny procedural fairness by failing to postpone for a sufficient time to enable them to recover and thus have a useable opportunity to put their case.

GLEESON CJ:   Mr Knoll, I am sorry to interrupt you again, but there is one factual matter that we had, perhaps, better clear up.  What is the state of the evidence in relation to the letter that was said not to have been received?  That is the letter of 5 March 2001 advising of appointments with the Commonwealth Medical Officer.  Is it left in the position that there is a simply a finding of fact by the Tribunal member about that which is disputed?

MR KNOLL:   No, your Honour.  I will put it a little differently, if I may.  The finding by the Tribunal was a finding not only that the letter was despatched and placed in the post office box that belonged to my clients, but that it was actually received by them.  That finding was based upon some hearsay material, which I can take the Court to in answer to your Honour’s question, and it belongs in the case dump document and I will take the Court to that if I may because it will facilitate the ‑ ‑ ‑

GUMMOW J:   What I am trying to get out of you, are you challenging this fact of finding by the Tribunal, and how do you manage to do that?

MR KNOLL:   No, your Honour, what we challenge ‑ ‑ ‑

GUMMOW J:   You do not get another run, you know, in an application for prerogative relief.

MR KNOLL:   The application is that there is an unfairness, a procedural unfairness, in finding that my clients did not intend to come to the hearing or to respond to the country information in so far as that finding is based upon them not going to visit the doctor in March or attending the 27 March hearing because they must have received the 5 March letter.  It is three steps, your Honour.

GLEESON CJ:   You say, must have received it, it was an inference that they did receive it.  Where is the Tribunal’s finding about this, what page?

MR KNOLL:   Your Honour might go to page 154 of the application book.

GUMMOW J:   Line 25.

MR KNOLL:   Then on to page 155.  In order to bring it in to context, one would have to begin at the first full paragraph, beginning “I find it implausible” on page 154, and conclude at the end of the short paragraph at the top of page 155.

GLEESON CJ:   Yes, the finding of fact is at line 28 and 29, “I am satisfied that . . . the applicants received it”.

MR KNOLL:   Yes, your Honour.  That finding underpins ‑ ‑ ‑

GUMMOW J:   What is wrong with that finding?  How can you get into all of that?

MR KNOLL:   Your Honour, it is not the making of the finding that is challenged.  It is what the finding underpins that is challenged.  I might clarify that in an attempt to assist the Court and I will do my best if I can.

GUMMOW J:   It seems to me that that was a finding that was, even if you could get into that area, well open to the Tribunal to make.

MR KNOLL:   Your Honour, the Tribunal is not limited by the rules of evidence, and therefore it can make it.  What that underpins, your Honour, is the paragraph at the top of page 155, and the 5 March letter is only a preliminary aspect to that finding at the top of 155, which is the more important from our perspective.

GLEESON CJ:   Yes, I agree that that is the more important finding.  Do you make a challenge to the finding at the top of 155?

MR KNOLL:   Yes, your Honour, because it is seriously infected with the breaches of natural justice, to which I will come.

GLEESON CJ:   Let it be assumed that the letter was received by the applicants on or about 6 March and that, notwithstanding the receipt of that letter, they failed to attend on the Commonwealth Medical Officer.  What would be the inference to be drawn from their failure to attend the Commonwealth Medical Officer having received that letter?

MR KNOLL:   Your Honour, it is our submission that no inference of relevance to the Tribunal’s decision‑making process can be drawn.  There is an inference the Tribunal could draw, that they failed to attend the doctor, Dr Uy, U-Y is the spelling of his name or her name, I am not quite sure, your Honour.  It cannot go further than that.

GUMMOW J:   Why not?

MR KNOLL:   I am sorry?

GUMMOW J:   Why not?

MR KNOLL:   I am trusting that is in answer to his Honour’s question.  If not, I am happy to clarify.

GUMMOW J:   Why cannot it not go further?  You say it cannot go further.  As a matter of logic, or something else?

MR KNOLL:   Your Honour, it would be my respectful submission that there is both a question of logic and experience to be taken into account.  The question of logic is relatively plain, in so far as if someone does not attend an appointment, it is only evidence that they did not attend the appointment.  The question of experience is a secondary one.  When an administrative decision‑maker is faced with a series of consistent medical certificates, one of which is given by a psychiatrist, qualified duly, the others of which are given by general practitioners, at least one of whom the Tribunal knows has familiarity in excess of a year and a half ‑ ‑ ‑

GUMMOW J:   Yes, but the Tribunal was not very happy about the medical certificates, was it?  It used phrases like “vague” and “unpersuasive”.

MR KNOLL:   It did, and ‑ ‑ ‑

GUMMOW J:   Looking at them it seems to me it was open for it to take that view too.

MR KNOLL:   Your Honour, one of the grounds of this application is that the Tribunal member is not expert in matters of mental health and had no relevant evidence as to the mental health fitness of the applicants before it upon which it could base any decision that they were fit and able to attend and chose not to.

GLEESON CJ:   If you look at page 124 of the application book, which is written at a time very close to the hearing date, the author of that letter demonstrates what looks like a pretty reasonable degree of capability of representing her own interests.

MR KNOLL:   Your Honour, there is available enough material - and I cite to some of that that was before the Court in the Raybos Case and I will come to it in a moment if asked to, where the question arises as to what a decision‑maker might do with non‑medical evidence which might appear to countervail medical evidence.  The most that can be said of that letter and, indeed, some of the other correspondence, is that the author of the second prosecutor appears to be lucid and able to write a good letter.  It is not evidence that the person is able - and this is the key issue in terms of a useable opportunity - to gather evidence internationally because the issue was posited by the Tribunal as the chance of persecution upon return to the home country, in this instance Romania, and that involves significant tasks of research and information gathering in order to try and persuade a Tribunal that there is more than a remote chance.

GLEESON CJ:   I wanted to draw your attention to paragraph 2 of that letter.  If the finding of the Tribunal is right, the statement of fact in paragraph 2 is untrue?

MR KNOLL:   To which sentence does your Honour refer?

GLEESON CJ:   “We were not notified of such appointment.”

MR KNOLL:   If the finding of the Tribunal were a correct one, that would be right.

GLEESON CJ:   If you look at the remainder of the letter, you find the author very vigorously asserting her rights in various respects and contesting the position taken by the Tribunal.  Was this letter before the Tribunal when the Tribunal decided to proceed with the hearing?

MR KNOLL:   Your Honour, the date of receipt, I will just check if I may ‑ ‑ ‑

GUMMOW J:   The date of receipt is the 26th.

MR KNOLL:   The 26th, then it must have been, your Honour.

GUMMOW J:   Yes.

MR KNOLL:   Can I address the question differently because there is a second part, clearly, to the question that has been put to me, and I think it really has two parts to an answer as well.

GLEESON CJ:   The problem you have to face up to is that the Tribunal member who is dealing with this is considering whether it is the case that your clients, that is numbers 1 and 2, are in a state of such psychological collapse that they cannot properly be expected to represent their case, or present their case, at a hearing of the Tribunal.  The day before the date fixed for hearing she, that is the Tribunal member, receives that letter.

MR KNOLL:   Yes.

GLEESON CJ:   What is she supposed to make of it in terms of assessing whether or not your clients are in a state of psychological collapse?

MR KNOLL:   She is not to assess, on the basis of the vigorousness with which one writes a letter, the mental fitness of a person to conduct international research to prepare and present material, from overseas because that was necessary, to deal with the question in the 17 November letter.  I need to take your Honour back to that to answer the question.

McHUGH J:   This argument does not really face up to the fact, Mr Knoll.  The real issue here is whether or not the Tribunal thought that your clients had embarked on a course of deliberate refusal to attend, and that was the view.  The submissions that you have put have to be read against the fact that your clients had failed to attend on three consecutive occasions: on 24 November, on 9 January, and on 13 February.  They then, on the Tribunal’s findings, lie about receiving the letter.  Add to that, there is this amazing coincidence that the day before that your clients are supposed to be there at the medical appointment, there comes a fax saying that they had not received any letters from the Tribunal since 26 February.  The Tribunal is entitled to take the view, “We live in the real world.  These people are just deliberating delaying the date of decision.”  That being so, why was the Tribunal not entitled to proceed from that moment on, on that basis?

MR KNOLL:   The answer to that, your Honour, is squarely this, and I cannot submit it any higher.  The Tribunal had before it medical evidence that the first prosecutor, because he was the patient of the psychiatrist in the first instance, was severely depressed, needed to reassessed in late January, and was not fit, and subsequent, qualified doctor’s certificates to the same effect.

McHUGH J:   The Tribunal took the view that they were in an unsatisfactory form.  There was the fact that there was this movement around of doctors, three general practitioners.  One Tribunal might have said, this is all very unfortunate, these people are obviously in serious condition so far as their health is concerned.  Another Tribunal might take the view, as this one apparently did, that your clients had no intention of fronting up for the hearing, particularly after you receive a letter such as the letter that the Chief Justice referred you to.

In any event, this is the problem.  It seems to me that the critical problem is, was the Tribunal entitled to take the view that your clients were deliberately staying away from the Tribunal?

MR KNOLL:   Would your Honour excuse me for just a minute?

McHUGH J:   Yes.

MR KNOLL:   Your Honour, my instructing solicitor reminds me that the fact that the second prosecutor might be able to write a lucid and cogent letter, or more than one, does not demonstrate that the first prosecutor, who was the principal applicant and whose experiences in Romania are the core of the application, is able to present his story.

McHUGH J:   No, but the point is whether or not the letter was received on 6 March, and the Tribunal was satisfied that it was.  There are two views about that.  Either the wife, on behalf of the husband, is just lying about it or she has kept it away from him and she is writing false letters to the Tribunal, or, they are in it together.  These things have to be examined in the real world and what people do, and the Tribunal has made a harsh judgment about your clients but, on the evidence, it seems to me, a judgment that was well open to them.

MR KNOLL:   Your Honour, I respectfully submit that the only way I can dissuade the Court, indeed, of forming that preliminary view, is to put it into its proper context and to do that the only way I can make my submissions and ask that the Court hear me, is to actually take the Court through the history of the material relating to the medical mental health state of my clients and, in particular, the first prosecutor.  I respectfully agree that if one looked at that letter and that letter alone, one might form the view that your Honour has just put to me.  I will be making my submission on the basis that, in context, that is not a view that was reasonably open to the Tribunal and that the Tribunal did not have any proper basis upon which to determine that this letter was evidence of fitness to prepare for and attend a hearing on the specific issue put to my clients on 17 November 2000.  If the Court would permit me to try and build that case I would be grateful for the opportunity.

May I take the Court first, please, to application book, page 68.

GUMMOW J:   This is designed to show that this finding was not open to the Tribunal, is it?

MR KNOLL:   It is designed to show that the finding that the ‑ ‑ ‑

GUMMOW J:   Not just that it was wrong?

MR KNOLL:   No, your Honour, if you would just permit me to gather my words for a moment please.  It is designed to show that the finding in relation to the intention of the clients not to attend and present their case was not open.

GUMMOW J:   Not open.

MR KNOLL:   Not open.

GLEESON CJ:   Yes.

MR KNOLL:   Your Honour, I do appreciate the standard I have to achieve.

GUMMOW J:   Yes.

MR KNOLL:   This is the first of the medical certificates that was before the Tribunal and it came with a letter that immediately precedes it, that commences on pages 66 and goes to 67.  Dr Mechrecky - and I am sorry if I do injustice to the pronunciation of his name - says that he saw these patients “suffering from anxiety and from” and then I cannot read the next word that precedes “depression/psychological problem”.  These patients are referred “to a psychiatrist” for reassessment and, I think it says “follow up” your Honour, that is as far as I can determine that.  What your Honour also needs to do to understand this in context is to look back to page 67.  The second prosecutor says, and I will just read from the sixth line of paragraph 5 please ‑ ‑ ‑

GLEESON CJ:   By the way, there is no suggestion that these letters have written with any legal assistance, is there?

MR KNOLL:   There is none.

When it is now obvious that we are ill, exhausted and unable to defend ourselves, the Tribunal makes pressure on us in order to expedite the case.  All of the above lead us to the conclusion that the Tribunal is biased against us and what it attempts to expedite is in fact our rejection.

I must jump a little to paragraph 6:

My whole family suffers the consequences of the agonizing insecurity and inhuman conditions we were subjected to for almost six years.  Here annexed is a certificate issued ‑ ‑ ‑

GUMMOW J:   What are the inhuman conditions?

MR KNOLL:   I am confident that that is a reference to the problems in Romania, and subsequently in Belgium, that the applicants experienced.

While it is most important to us to attend a hearing, our condition has become an insurmountable handicap which will be assessed a.s.a.p. by a specialized medical practitioner.  Accordingly, we request that in the meantime –

that clearly is a reference back to the “assessed a.s.a.p.”. 

you put the hearing on hold.

It says in paragraph 7:

our case cannot be fairly determined in circumstances where we are not given the opportunity to investigate and bring forward updated information in support to our application.  Such investigation cannot be made as long as we are incapacitated as a result of hardship and condition.

I just wish to bring to your Honour’s attention of what is being sought, is a delay while a specialised opinion is obtained, at this stage.

GLEESON CJ:   The proposition is “we are incapacitated”?

MR KNOLL:   Yes.

GLEESON CJ:   The author of that letter does not give the impression of being an incapacitated person.

MR KNOLL:   Indeed, everything before the Tribunal indicated that the second prosecutor had far more of her wits about her than the first prosecutor, who had virtually none.  It is, after all, his case.  Both Tribunal decisions make clear that it is principally his case and he was the person who was involved with the - I have to be careful how I say this to not disclose an identity - unwelcome elements of the government in his home country.

GLEESON CJ:   That is why I asked you a question I asked you earlier.  I do not understand that to be the subject of any confidentiality order.  I raised this issue with you for this very reason.

MR KNOLL:   Sorry, your Honour, I have clearly misunderstood.

GLEESON CJ:   I do not see anything in the confidentiality orders that stops references to the name of the country of his origin or to the identity of the organisation in that country with which it was said he might have had an association.

MR KNOLL:   Your Honour, I accept that I misunderstood the earlier point and might I do it more clearly at this stage.  The proposition is this - and I will reframe it if I may - that he had an involvement with the Romanian Secret Service, both before and after the overthrow of Ceausescu Government, and that she did not have that involvement and that his involvement and the events which he knew gave rise to the fear of persecution.  The question that the Tribunal put on 17 November 2000 was whether the fear of persecution was well‑founded as at the date the second Tribunal had to make its decision.  I think I have done it a little more precisely, your Honour, and I appreciate the opportunity.

What the second prosecutor is asking for, and I accept she had done it quite lucidly and she puts the case for her husband strongly; he needs a chance to tell his story and to be able to deal with the well‑foundedness issue as well because there is now a remitter, that means we need to be reheard at merits review level, that means we need to develop the fact of persecution, the fact of fear and the well‑foundedness of the fear.

GUMMOW J:   None of these have been developed on the first round?

MR KNOLL:   Your Honour, it is respectfully put that the fact of persecution and the fear were put.  There were findings which are part of a decision that has been found reviewable, remitted ‑ ‑ ‑

GUMMOW J:   Yes, but have been found reviewable for a very technical defect.  What I am asking you is ‑ ‑ ‑

MR KNOLL:   Your Honour, reviewable means it has been set aside.

GUMMOW J:   I realise that too, but all I am asking you is that at the time of the first proceeding were any of these matters agitated or was the whole thing on a much more limited basis?

MR KNOLL:   I would respectfully say that both the fear, ie, the basis of the fear, and its well‑foundedness, must be reagitated because they both have to be in evidence before the Tribunal at the time the second Tribunal makes it decision.

GLEESON CJ:   That is right, but the matter you have to face up to - and it is referred to in the reasons for the Tribunal member - is, and let us not put too fine a point on it, the question of whether your clients were stalling for time in late 2000 and early 2001 has to be assessed in the light of the very long history of the matter.

MR KNOLL:   I accept that proposition, your Honour.  The long history is a context in which the Tribunal, as second constituted, had to assess each of the elements that make up the application for a merits review.  The critical evidence that had to be before the Tribunal, as second constituted, was the evidence of the first prosecutor.

GUMMOW J:   I realise that.  That would require some updating of what he had put to the first Tribunal from his point of view, the point of view of preparation would require some updating, I suppose.

MR KNOLL:   It would require ‑ ‑ ‑

GUMMOW J:   It would not require to start again, would it, from his point of view?  He would not throw away the materials he has used before, would he?  You have to be sensible about all this.

MR KNOLL:   There is evidence ‑ ‑ ‑

GUMMOW J:   If he had country information about what was going on in Romania at a relevant date for the first proceeding of the Tribunal, why would he forget that?

MR KNOLL:   Your Honour, that does not, I am afraid, address the question before the second Tribunal because following both Chen’s Case and Mayer’s Case to which I have adverted in my written submissions ‑ ‑ ‑

GUMMOW J:   You are saying he needed time to initiate all of this.  What I am asking you is, why?  He had lots of time.

MR KNOLL:   He needs to be able to make the appropriate contacts, in a circumstance where he is so depressed he is not functioning properly, that the people he knows ‑ ‑ ‑

GUMMOW J:   Is he said to be not functioning properly at the time of the first Tribunal matter?

MR KNOLL:   No, that is not put.

GUMMOW J:   Right.

GLEESON CJ:   The practical issue, as I understand it - and again I invite correction if I am not understanding it correctly – that it largely came down to is this, was it not:  the Tribunal found against your client, ultimately on the factual ground that about a quarter of the entire population of Romania had, willingly or unwillingly, provided information to the Securitate, and in that circumstance, bearing in mind that your client was never an officer of that organisation, the Tribunal did not accept that return to Romania would involve persecution?  There may be things to be said one way or another about that issue, but had not most of them been said?

MR KNOLL:   The answer to that, your Honour, is most, but not all of them, had been said.  If I might take the Court for a moment please, because there is clearly a substantive issue troubling the Court, and that is, what of substance still remained to be put?  I need to take the Court, if I may, to two parts of the application book to at least identify that issue, accepting for a moment that this is not a merits tribunal, but so that the Court is at least apprised of what the issue is.

The first item is at page 184 of the application book.  This is the material that was before the first Tribunal, in answer to your Honour’s previous question.

GUMMOW J:   Yes.

MR KNOLL:   May I take the Court, please, specially to the last paragraph on the page.

GLEESON CJ:   The subject on the top of the page is of some significance, is it not?

MR KNOLL:   It is.  The subject is of importance.  It relates to persons who spied for the Securitate.

GLEESON CJ:   That is a fair formulation of what was the essential merits issue before the Tribunal, is it not?

MR KNOLL:   It is.  Your Honour, the specific problem that faced the Tribunal comes from the last paragraph.  What is said there is that:

Former Securitate officers –

and it is accepted that the first prosecutor was not an officer in that nomenclature –

are treated well today in Romania.  They are able to live a normal life without threats.  Several of them are now thriving in the private sector as businessmen.  Unless a former officer has “defected” to a foreign country and released secrets about Romania, the source could not conceive of a reason why a former member of the Securitate would be in danger today in Romania.

One of the issues that was before both Tribunals – and in relation to which the first Tribunal moved through to the well‑foundedness question without fully dealing with this, because it was able to base a decision and say, “if it is not well‑founded, that is the end of the matter” – is whether the first prosecutor fell within the exception, beginning with “unless”.  It is submitted that the quotes around the word “defector”, as in so many political dissident cases, relate to whether the person is perceived to be a defector. 

GLEESON CJ:   No.  That is a combination of two facts. 

MR KNOLL:   Yes. 

GLEESON CJ:   Is there evidence that there had been a release of secrets? 

MR KNOLL:   That comes later, your Honour, and I will take the Court to that.  Sorry, I misunderstood the question, I apologise.  Is there evidence that there had been a release of secrets?  The answer to that is in 18 hours worth of tape before the ministerial delegate.  On my instructions, it is, yes. 

GUMMOW J:   Released to whom? 

MR KNOLL:   Sorry? 

GUMMOW J:   Released to whom? 

MR KNOLL:   Principally, the Minister’s delegate.  The problem, however, your Honour, is not whether they were actually released.  The problem is whether there is a perception that they were released, because persecution, and the fear of it, does not arise from the actual event of which a defector is accused; it arises from the perception that the defector has done what he is accused of. 

In the matter before the first Tribunal, the first Tribunal placed some reliance upon the fact that Securitate files had remained secret and locked.  As to the second Tribunal, would your Honours please turn to page 184 – sorry.  If you look a little higher, that is where the problem of non-release of documents arises, on the same page I was at previously.  At page 188 – and this is from the country material provided by the Tribunal – at approximately 30, your Honours will see that since 1999, there is legislation permitting access to secret police files. 

Now, the question that was put to me a few moments ago was is it just a matter of updating?  Well, the answer is somewhat more significant, because having been shown this material, where the actual position in relation to the secrecy of files held in Romania has changed, the well‑foundedness of the fear also will have changed, because there needs to be an investigation whether the matters in relation to which the first prosecutor was involved with the Securitate fall within this release.  That, substantially, can affect the nature of the fear and its well‑foundedness.  That is why the investigation into events that occurred between 1996 and 2000 affect not only the well‑foundedness of the fear, but whether it continues to be genuine, and what the basis of the fear of persecution is. 

GUMMOW J:   The Tribunal dealt with this at page 171, did it not?  That is to say, with the 1999 law. 

MR KNOLL:   And it did that, your Honour, without the benefit of anything from the first prosecutor, who was the person involved.

GUMMOW J:   What would he have said? 

MR KNOLL:   I cannot say that, your Honour, because he has not had a useable opportunity to put his tackle together to do that.  That is the difficulty here. 

GLEESON CJ:   You do not make out a case, I gather, in which you say, “My client was denied procedural fairness, and if procedural fairness had been extended to him in March of this year, he would have had this to say.”  You do not seek to make out a case like that? 

MR KNOLL:   I am not in a position to say that, your Honour. 

GLEESON CJ:   Why are you not in a position to say that? 

MR KNOLL:   I am not in a position to say that for two reasons:  firstly, because of the state of mental health of the first prosecutor, and ‑ ‑ ‑

GLEESON CJ:   At the moment, he is capable of giving you instructions to conduct these proceedings. 

MR KNOLL:   I can safely indicate to the Court that almost entirely, but not completely, the instructions have come from the second prosecutor. 

GLEESON CJ:   Experience shows that there are some cases in which a person who says that he or she has been denied natural justice will come to a court and say, “If I had been given an opportunity to deal with this matter, this is the way I would have dealt with it.” 

MR KNOLL:   I understand. 

GLEESON CJ:   But you do not seek to make out a case of that kind. 

MR KNOLL:   Well, I am making out a case that goes this far, your Honour, which is as far as I can safely put it:  the first prosecutor would have made contact with relevant people in Romania, being fit to do so.

GUMMOW J:   He has not done it between March and now. 

MR KNOLL:   There is no evidence that he has done that, your Honour.  The evidence that was put forward relates to the time at which the Tribunal made its decision, and the question is whether ‑ ‑ ‑

GUMMOW J:   The question is, what we do now. 

MR KNOLL:   Yes.  Well, the short answer ‑ ‑ ‑

GUMMOW J:   And what we do now in terms of giving relief is bound up with these very practical questions that the Chief Justice has been putting to you.  We do not live in a vacuum, either. 

MR KNOLL:   That is appreciated, your Honour.  The critical element is,  given that the Tribunal is functus, as second constituted, what ought this man to do – assuming fitness – to put his case?  The only place he can put his case on the merits is before the Refugee Review Tribunal, were the case to be remitted.  It is not for him to put his merits case here. 

GLEESON CJ:   And if the case is remitted to the Refugee Tribunal, when will it be ready to proceed? 

MR KNOLL:   The process that, it is respectfully submitted, ought to occur, is a remission on terms that requires his current treating psychiatrist to provide a prognosis to the Tribunal, to update any change of that prognosis to the Tribunal, for him to appear as soon as ‑ ‑ ‑

GUMMOW J:   Why not the Commonwealth Medical Officer? 

MR KNOLL:   Your Honour, that would be acceptable.  If there were a Commonwealth Medical Officer who is a psychiatrist prepared to do that, that would be an acceptable process. 

GUMMOW J:   When has that first been said? 

MR KNOLL:   I am putting it, your Honour, because I specifically asked for those instructions.  It is a matter for instructions, and the Court has power to remit on terms. 

GLEESON CJ:   But what you do not have any instructions about is instructions to indicate that if your client had been given an opportunity to deal further with this issue of merits that we have been talking about, there are particular matters that he could and would have put to the Tribunal. 

MR KNOLL:   I am caught in a circular conundrum and I had best explain what it is, because the Court is entitled to the practical answer, as well.  The case I am putting, and your Honours, fairly, are questioning it, is that the prerequisite to conducting the necessary investigation is the mental fitness.  The question that is being put to me ‑ ‑ ‑

GUMMOW J:   Assume the contrary. 

MR KNOLL:   Well, the minute one assumes the contrary that there is no prerequisite of mental fitness, ground A disappears.  I accept that.  That is the issue. 

GLEESON CJ:   But you do not want us to act on the basis that if your client had been given an opportunity, further and better, to deal with this merits issue, he would have set out to demonstrate to the Tribunal that, far from it being the case that people like him are now well‑treated in Romania ‑ partly because they constitute a very large proportion of the population – they are being very harshly treated in Romania? 

MR KNOLL:   The case I am putting is not quite that, but it is not far different.  The proposition is that – and it depends on what Justice Gummow has just put to me.  If mental health is a prerequisite – and if your Honour will permit me to just push the assumption one step further ‑ and mental health recovers, so the man has his tackle together, does he deserve the opportunity to investigate present conditions in Romania and put his case on the merits to the Refugee Review Tribunal? 

GUMMOW J:   But this all comes back to what Justice McHugh put to you, that is to say, all of this further debate does not arise if the Tribunal’s conclusions at page ‑ ‑ ‑

MR KNOLL:   Page 155 at the top, your Honour. 

GUMMOW J:    ‑ ‑ ‑ yes, and 154, stand. 

MR KNOLL:   I accept that that is my hurdle, and I was midway through building the context in order to develop that. 

GUMMOW J:   All right. 

MR KNOLL:   I do appreciate what has been put to me from the Bench.  The difficulty – and this I should indicate to the Court now – also relates to ground C.  The difficulty is, as one goes through the evidence, one sees that the Tribunal was not open to the possibility that they needed to have their mental fitness about them.  I will demonstrate that through the succeeding correspondence.  The Tribunal replied to the letters I adverted to before the present course of questions at page 71 of the application book.  The second paragraph, beginning, “The Member has considered your request”, refers to a request: 

that she put your hearing “on hold” for an indeterminate length of time while you consult a “specialised medical practitioner”. 

Now, one must refer back, here, to page 67 to see what it was that the second prosecutor sought for her husband.  She asked for a delay while a specialised assessment was obtained ASAP.  Within a week, the specialised assessment was obtained, but what the Tribunal comes back with is only the concept that it is “an indeterminate length of time”.  If your Honours will permit me to develop these steps a few lengths further, I will try and anticipate the specific issue that is arising out of this.  The member is focusing on her need to conduct the proceedings efficiently.  Now, on 21 November, the first prosecutor attends upon Dr Tran, and on 23 November, sees the psychiatrist Dr Burek.  Now, this is within a week of that request.  The medical certificates are forwarded to the Tribunal ‑ ‑ ‑

GLEESON CJ:   Where do we see those? 

MR KNOLL:   They are at pages 198 and 199.  The first of the certificates ‑ and, if I may, by preliminary point, just draw the Court’s attention to the top left-hand corner of 198.  Your Honours will see there that Dr Sipeli and Dr Tran, the principal general practitioners providing certificates, are in the same practice.  There are, at various points, suggestions by the Tribunal that my clients are doctor-hopping.  They are going to that practice.  In the middle, the diagnosis appears: 

In the state that they are in at present, they are unfit to present themselves at the tribunal.  I have started them on an antidepressant and they have an appointment to see a psychiatrist (Dr Burek ‑ ‑ ‑

McHUGH J:   Could I just stop you there, because Dr Tran did not know what went on in the Tribunal. 

MR KNOLL:   No, does not know that. 

McHUGH J:   No, he did not know it.  He admitted it.  There is a file note to that effect, of a telephone conversation with him. 

MR KNOLL:   I am sorry, your Honour.  I may be misunderstanding the question. 

McHUGH J:   Dr Tran there expresses an opinion that they are unfit to present themselves at the Tribunal.  When he was telephoned and asked about ‑ ‑ ‑

MR KNOLL:   Yes.  That is at page 200, at point 5. 

GUMMOW J:   Page 200, point 6. 

MR KNOLL:   Point 6, sorry.  Thank you, your Honour.  What is presented there is, with respect, a leading question from Ms Livingstone.  Ms Livingstone puts to the doctor that what he should be opining on is a circumstance where an RRT hearing is an informal, non-adversarial process, with an interpreter provided, where the applicants, before that Tribunal: 

are allowed to bring friends or relatives with them for moral support and that they are not expected or obliged to conduct a presentation, that all their material has already been written and presented –

Now, it is quite clear that when one attends a Tribunal hearing, whether it is in question and answer mode or otherwise, you are expected to present your case.  The Tribunal is skilled and experienced in dealing with people who are in a state of distress.  That is on 23 November. 

On the 29th, the telephone message is returned, and that is noted at the bottom of page 200.  In answer to question 6, Dr Tran says that: 

they give the impression that the Tribunal hearing is like a court. 

That is what he is recorded as having said.  What one can infer from that is that the Tribunal does require evidence to be presented, and that ought not to be a point of great controversy.  What Dr Tran is saying is that they are not fit, but then they go promptly to the psychiatrist to whom they are referred – Dr Burek.  His certificate, dated the 23rd – two days later ‑ within the week for the request for a postponement, at page 199, indicates: 

For at least the next month, they are not fit to appear in tribunal or courtroom settings. 

Now, quite reasonably, the Tribunal follows up these two doctors.  It is acknowledged that that was reasonable. 

GUMMOW J:   Page 202, line 34, it is said that your client has a pending court case “concerning unfair dismissal from employment.”  This is August 2001. 

MR KNOLL:   Yes, your Honour.  That was before the Tribunal, but not in that form.  This is a document that was, by agreement, taken out of the evidence. 

GUMMOW J:   I see. 

MR KNOLL:   My friend objected, and I withdrew.  The response from Dr Burek and the correspondence there is of some importance.  It is of importance for ground A and it is of importance for ground C.  The Tribunal writes to Dr Burek – and the text of that letter I will just come to in a moment, if I may.  Page 84 – I am sorry, 81, 82.  The Tribunal member describes, in the second dot point paragraph, that the decision in the first Tribunal hearing was remitted “for a technical reason”.  The member says: 

The reason for telling you this is to indicate that Mr  –

and this is prosecutor 1 –

has some familiarity with the process and that he has already put all his claims in writing and gathered a large amount of information to support his claims. 

Now, again, I stress the point that if all the claims were in, there would not be a right to be heard in any form.  On the next page, the second dot point on 82 is also of importance, because this is the question being put to the psychiatrist by the Tribunal so the Tribunal can be informed as to the mental fitness of the applicants.  The second dot point reads: 

I am satisfied that neither [the first prosecutor] nor [the second prosecutor] suffered harm, let alone harm amounting to persecution, for a Convention reason in the past.  I am also satisfied that the chance of such harm befalling them in the reasonably foreseeable future is remote.  It follows that I am not satisfied that either [the first prosecutor] or [the second prosecutor] have a well‑founded fear of persecution for a Convention reason.  They are not refugees.

Three grounds are advanced in support of the application for constitutional relief.  Ground A asserts a denial of procedural fairness in relation to the decision of the Tribunal to go ahead with the hearing on 27 March 2001 in the absence of the prosecutors.  Ground B asserts a denial of procedural fairness in relation to certain confidential documents that were not disclosed to the prosecutors.  Ground C asserts apprehended bias on the part of the second respondent, the member who constituted the Tribunal on 27 March 2001.  The resolution of the matter turns entirely upon questions of fact.  The case raises no doubtful question of legal principle.

In relation to ground A, it is necessary to note the statutory background. Section 426A of the Act provides:

(1)If the applicant:

(a)is invited under section 425 to appear before the Tribunal; and

(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.

That is a significant part of the context in which the events I am about to outline fall to be considered.

The prosecutors were invited to attend hearings before the Tribunal scheduled first for 14 November 2000, then for 24 November 2000, then for 9 January 2001 and then for 13 February 2001, before the hearing ultimately took place on 27 March 2001.  In relation to each of those four earlier scheduled hearings the Tribunal granted adjournments at the request of the second prosecutor. 

The first hearing scheduled for 14 November 2000 was adjourned at the request of the second prosecutor made in a letter dated 3 November 2000.  The letter referred to the recent loss of employment by the first prosecutor and stated that both he and the second prosecutor were unable, both psychologically and in practical terms, to attend a hearing.

The second scheduled hearing on 24 November 2000 was adjourned following requests by the second prosecutor in letters dated 16 November 2000 and 22 November 2000.  In her letter of 16 November 2000 the second prosecutor asked that the hearing be relisted because the first prosecutor had an appointment with a specialist medical practitioner on 24 November 2000 and attached a certificate from a general practitioner confirming the referral.  The general practitioner’s certificate stated:

These patients suffer from anxiety and from depression/psychological problem.  These patients referred to psychiatrist for reassessment and followup.

On 17 November 2000 the Tribunal wrote to the prosecutors advising that the hearing would proceed on 24 November 2000 as scheduled.  The Tribunal attached country information in relation to the current circumstances in Romania for former Securitate officers and observed:

Please find enclosed some recent information that the Member has read which indicates that one in four Romanians were believed to have collaborated with the secret police, that many of these people have since taken an active part in public life, and that new legislation provides that former Securitate officers can be exposed but not punished.  Presumably, there is much less concern about those who were not Securitate officers but simply unwilling informers.  On the basis of this information, the Member would be asking your husband at hearing if there is more than a remote chance that he would be harmed on return to Romania for reason of his former involuntary association with Securitate.

By a letter dated 22 November 2000 the second prosecutor reiterated her request to adjourn the hearing scheduled for 24 November 2000.  The letter attached two further medical certificates.  Dr Tran, a general practitioner, stated that the first and second prosecutor suffered from stress/anxiety and depression and confirmed that they had been referred to Dr Burek, a psychiatrist.  Dr Burek stated that they appeared depressed and demoralised, were commencing antidepressant medication and were not fit to appear in tribunal or courtroom settings for at least one month.

The third scheduled hearing on 9 January 2001 was postponed at the request of the second prosecutor in a letter dated 7 January 2001.  The letter attached a medical certificate from a general practitioner stating that the first and second prosecutor suffered from depression due to long‑term family, social, financial and immigration problems and would be unable to attend a hearing before 4 February 2001.

On 15 January 2001 the Tribunal wrote to the first prosecutor advising that the hearing listed for 9 January 2001 had been rescheduled for 13 February 2001.  The Tribunal referred to the previous adjournments on the basis of medical certificates from three different general practitioners and one psychiatrist.  It noted that any further requests for adjournment on medical grounds would require confirmation by referral to the Commonwealth Medical Officer.

The fourth scheduled hearing on 13 February 2001 was adjourned on the basis of a facsimile from the second prosecutor dated 7 February 2001.  The facsimile attached certificates dated 1 February 2001 from another general practitioner stating that the first prosecutor and second prosecutor were suffering from mental stress or mental problem and would be unfit to attend a hearing until 5 March 2001.

Following the postponement of the fourth scheduled hearing, the Tribunal wrote to the first prosecutor on 5 March 2001 advising that appointments had been made for him and the second prosecutor to be examined by the Commonwealth Medical Officer on 15 March 2001.  The letter advised the prosecutor that the hearing had been rescheduled for 27 March 2001 and enclosed another letter formally inviting the prosecutors to attend that hearing.  The letter concluded with the following statement:

If the CMO, as a result of his examination, says that you are fit to attend the hearing on 27 March 2001, you must attend it.  Postponement of the scheduled hearing will only be arranged on the orders of the CMO.

In a letter dated 12 March 2001 the second prosecutor wrote to the acting principal member of the Tribunal in relation to requests she had made for the Tribunal to be constituted by a member other than the second respondent.  She noted that she had not received a response to her request to adjourn the hearing scheduled for 13 February 2001 and attached a further medical certificate from a general practitioner.  The certificate dated 3 March 2001 stated that the first prosecutor and second prosecutor were both still unable to attend court and tribunal for a month’s duration.

The first prosecutor and the second prosecutor did not attend for examination by the Commonwealth Medical Officer as appointed on 15 March 2001.  That day the Tribunal arranged for inquiries to be made through Australia Post to confirm delivery of the letter of 5 March 2001 to the prosecutors’ address for service, a post office box at Richmond Post Office.  An officer of Australia Post assured the Tribunal that the letter of 5 March 2001, identifiable by its express post item number, had been delivered into the prosecutors’ box on 6 March 2001.

On 16 March 2001 the Tribunal wrote to the prosecutors, noting its understanding that they had failed to attend for examination by the Commonwealth Medical Officer and confirming that they were expected to attend the hearing scheduled for 27 March 2001.  The Tribunal warned:

If you do not attend the hearing, the Tribunal will proceed to make a decision on your case.

In a facsimile dated 24 March 2001 the second prosecutor responded to the Tribunal’s letter of 16 March 2001.  She claimed that she had not been notified of any appointment to attend the Commonwealth Medical Officer and, inferentially, that she had not received the letter dated 5 March 2001 inviting the prosecutors to the hearing scheduled for 27 March 2001.  The facsimile included the following statement by the second prosecutor:

Please note that we have our own very serious commitments and are not prepared to tolerate any of your abuses.  Furthermore, we are unable to attend, due to the lack of improvement in our medical condition.

Despite having received the Tribunal’s letter of 16 March 2001 warning that the hearing would proceed on 27 March 2001, the prosecutors did not attend the hearing.

In its reasons for its decision the Tribunal explained why it proceeded on 27 March 2001 in the absence of the prosecutors.  The Tribunal reviewed the long history of the prosecutors’ applications and concluded that in the circumstances it would not be a denial of procedural fairness to proceed to a decision without hearing oral evidence.  The Tribunal referred to the following matters.  First, in the light of the course of correspondence with the prosecutors, the Tribunal found it implausible that the letter of 5 March 2001 did not reach its destination.  The Tribunal rejected the assertion that the letter had not been received.  The Tribunal was satisfied that it had been placed in the prosecutors’ post office box on 6 March 2001 and that the prosecutors had received it.  That finding of fact was well open to the Tribunal.

Secondly, the Tribunal observed that, in any event, there was no dispute that the prosecutors had received the Tribunal’s letter of 16 March 2001 notifying them that the hearing was scheduled for 27 March 2001 and that the Tribunal would proceed to make a decision if they did not attend.  The letter specifically adverted to the most recent medical certificate provided and stated that it was insufficient reason to excuse the prosecutors from attending the hearing. 

Thirdly, the prosecutors had been on notice since the Tribunal’s letter of 15 January 2001 that further adjournment requests on medical grounds would require referral for independent examination by the Commonwealth Medical Officer.

Fourthly, the Tribunal was satisfied that the prosecutors neither wished nor intended to attend a hearing or respond to the country information provided to them in the reasonably foreseeable future.  That finding of fact was well open to the Tribunal. 

Fifthly, there had already been ample opportunity for the prosecutors to present their claims orally during 19½ hours of interviews by the primary decision‑maker and two hearings before the previous Tribunal differently constituted. 

Sixthly, as the Tribunal had before it the material previously obtained from the prosecutors, which they had reviewed and checked, and as there was no reason to believe that their circumstances had relevantly changed since the hearings before the previous Tribunal, it was doubtful that anything would be gained by a further hearing.

The primary basis on which the argument for the prosecutors in this respect has been presented is that in proceeding with a hearing on 27 March 2001 there was a failure to extend procedural fairness to the prosecutors. In that respect, as has already been noted, s 246A of the Act provides an important part of the background against which the Tribunal was acting. The reasons given by the Tribunal for proceeding as it did are cogent and compelling and the findings of fact upon which those reasons were based were open and soundly based. In particular, in all the circumstances, the Tribunal was justified in concluding that the prosecutors did not wish or intend to attend a hearing before the Tribunal in the reasonably foreseeable future. It is also important to bear in mind the long history of the proceedings and the extensive opportunity that had been given to the prosecutors to provide information to, and make their case before, the Tribunal. This argument must fail.

The second basis upon which ground A was pressed was more particular.  It was submitted that the Tribunal failed to extend procedural fairness to the prosecutors because in the events leading up to the making of the decision the prosecutors were not given fair warning of the possibility that the Tribunal might find that they were, to put it bluntly, stalling and that they had no serious intention to attend a hearing before the Tribunal in the reasonably foreseeable future.

It is difficult to imagine anything that could have been more obvious to the prosecutors, at least one of whom is demonstrated to be a very astute person, than that over the period between November 2000 and March 2001 the Tribunal was becoming increasingly sceptical as to the good faith of the prosecutors.  Over that period the Tribunal was repeatedly seeking to check up on the medical information that was being tendered to it on behalf of the prosecutors and, finally, the Tribunal indicated that it wanted the Commonwealth Medical Officer to check the allegations that were being advanced as to the condition of the prosecutors.  In addition, the communications that were being sent repeatedly warned the prosecutors that the time would come, and come shortly, when the Tribunal was going to go ahead in their absence if they chose not to attend.

The prosecutors were given more than fair and adequate warning of the course that the Tribunal ultimately took and of the basis upon which it finally decided to take that course.  Ground A must fail.

In relation to ground B, it is necessary to refer to another provision of the Act. Section 424A of the Act provides:

(1)Subject to subsection (3), the Tribunal must:

(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)invite the applicant to comment on it.

(2)The invitation must be given to the applicant by one of the methods specified in section 441A.  However, this subsection does not apply if the applicant is in immigration detention.

(3)This section does not apply to information:

(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)that the applicant gave for the purpose of the application; or

(c)that is non-disclosable information.

Section 424A(3)(c) refers to “non‑disclosable information”, which is defined in s 5 of the Act to mean, amongst other things, information or matter whose disclosure would found an action by a person for breach of confidence.

It is submitted on behalf of the prosecutors that matters adverse to the prosecutors which came to the attention of the member before she made her decision were not put to the prosecutors for their comment.  The matters in question appear in two documents which were withheld from production under the Freedom of Information Act on the basis of confidentiality. An examination of the contents of those documents and a consideration of the material contained in them supports the conclusion that they were confidential, that the disclosure of those documents would have involved a breach of confidentiality and that the information would have been non‑disclosable within the terms s 424A(3), if it had otherwise been within s 424A(1). It would be inappropriate to elaborate beyond that.

It was submitted in argument on behalf of the prosecutors that there was a formula that could have been employed to enable at least some notice of what was in this material to be given to the prosecutors to enable them to respond to it if they thought fit.  Counsel suggested a formula that might have been used, but the formula would not have put the prosecutors in any better position to respond to the matter in question.  Indeed, it would have created for them a mystery.

There is another reason why this ground must fail.  There is nothing in the reasoning of the Tribunal to suggest that the matter in question was given any significance by the Tribunal or even that it was regarded as relevant.  In truth, and partly because of the generality with which the information was expressed, it was irrelevant.  The issue that was in the forefront of the merits of the matter for the Tribunal’s determination was the question of the likelihood of retribution upon return to Romania by the prosecutors.  The material in question had nothing whatever to do with that issue.  It contained some adverse reflections upon the prosecutors, but those reflections were made in a context that indicated that they had no bearing on the matter that was for decision by the Tribunal, and they were so lacking in specificity that they could not have influenced the Tribunal’s decision in any way.   This ground also must fail.

Ground C is based upon apprehended bias, mainly, but I think not exclusively, in the form of prejudgment.  There was also a suggestion that there may have been bias in the form of animus on the part of the member towards the prosecutors, particularly as time moved on towards the hearing and scepticism was expressed as to the excuses that were being advanced for their failure to attend hearings or attend the Commonwealth Medical Officer.

A consideration of the terms of the correspondence between the Tribunal and the prosecutors, read in light of the correspondence from the second prosecutor to the Tribunal, as well as the reasons for decision, demonstrate that the second respondent conducted herself with courtesy and restraint.  There is no reason to doubt that she kept an open mind on all issues that required her decision, including the issue of the medical condition of the prosecutors.  Nor is there any reason to doubt that she was capable of bringing, and that she brought, an independent and open mind to the performance of her task.  A reasonable observer would have had no grounds for apprehending bias in any form.  Ground C has not been made out.

I would propose that the applications should be dismissed with costs.

McHUGH J:   I agree.

GUMMOW J:   I agree.

GLEESON CJ:   The order of the Court will be as I have proposed.  We will adjourn.

AT 3.15 PM THE MATTER WAS CONCLUDED