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Re Refugee Review Tribunal; Ex parte Aala

Re Refugee Review Tribunal; Ex parte Aala

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Case Copied 16 November 2000 85 min read

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HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
RE REFUGEE REVIEW TRIBUNAL & ANOR                RESPONDENTS
EX PARTE MANSOUR AALA   PROSECUTOR
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57
16 November 2000
S185/1999
ORDER
1.   Order absolute for a writ of prohibition prohibiting the second respondent from taking action on the decision of the first respondent made on 3 April 1998.
2.   Order that time be extended and that a writ of certiorari issue to quash the decision of the first respondent made on 3 April 1998.
3.   In respect of the application by the prosecutor dated 4 October 1996, Order absolute for a writ of mandamus requiring the first respondent to consider and determine the application according to law.
4.   Second respondent to pay costs of prosecutor, both in respect of the order nisi and the hearing before Full Court.
Representation:
P E King with K M Hawes for the prosecutor (instructed by the prosecutor)
No appearance for the first respondent
T Reilly with G A Mowbray for the second respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

GLEESON CJ. The facts, which are not in dispute, are set out in the reasons for judgment of other members of the Court.
The issues are whether, in the events that occurred, involving an erroneous statement by the Refugee Review Tribunal as to the material which was before the Tribunal, there was a denial of procedural fairness, and, if so, whether the consequence is that prohibition should go under s 75(v) of the Constitution.
As to the first issue, the statement in question covered a matter which had a bearing upon the credibility of the prosecutor. It misled the prosecutor, as a consequence of which he was deprived of the opportunity to answer, by evidence and argument, adverse inferences which were based in part upon a misunderstanding of his previous conduct. Had he been given an opportunity to correct the misunderstanding, a different view might have been taken as to his credibility.
It cannot be concluded that the denial of that opportunity made no difference to the outcome of the proceeding[1]. The Tribunal's conclusion that certain information given by the prosecutor was a concoction was based, in part, upon an unwarranted assumption as to what the prosecutor had previously told various authorities; an assumption which, according to the evidence, the prosecutor could and would have corrected had he not been inadvertently misled by the Tribunal. It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the Tribunal's ultimate conclusion would have been the same. But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. As a result of the conduct of the Tribunal, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] HCA 57
Decision Date: 16 November 2000

CaseChat Overview and Summary

The High Court of Australia considered an application for prerogative relief by a prosecutor against the Refugee Review Tribunal. The prosecutor sought to challenge a decision of the Tribunal that had refused his application for a protection visa. The central issue arose from an erroneous statement made by the Tribunal at the commencement of the hearing, indicating that it had reviewed certain relevant materials which, in fact, it had not. This statement, the prosecutor contended, led him to believe the Tribunal was fully informed, impacting his presentation of evidence concerning his credibility.

The legal questions before the Court were whether the Tribunal's failure to afford the prosecutor procedural fairness, by making an erroneous statement about its review of evidence and subsequently denying him an opportunity to be heard on matters affecting his credibility, warranted the grant of constitutional writs. Specifically, the Court had to determine the nature of the writ of prohibition, its availability for breaches of procedural fairness, whether it was available as of right or at the Court's discretion, and whether the application should be rejected due to delay. The Court also considered the construction of section 75(v) of the Constitution regarding the meaning of words at the time of its commencement.

The Court reasoned that the Tribunal's erroneous statement, which led the prosecutor to believe it had considered all relevant evidence, constituted a denial of procedural fairness. The prosecutor was not afforded a proper opportunity to address the Tribunal on matters that were critical to its assessment of his credibility, particularly concerning the potential disclosure of information by his friend, Ali Tehrani. The Court affirmed that the writ of prohibition is a constitutional writ available as of right to prevent a superior court or tribunal from exceeding its jurisdiction, and that a failure to accord procedural fairness can amount to an excess of jurisdiction. The Court also found that the prosecutor's application was not barred by delay.

The Court made orders absolute for a writ of prohibition prohibiting the Tribunal from taking action on its decision of 3 April 1998. It also ordered that time be extended and a writ of certiorari issue to quash the Tribunal's decision. Furthermore, a writ of mandamus was ordered, requiring the Tribunal to consider and determine the prosecutor's application according to law. The second respondent was ordered to pay the prosecutor's costs.

Orders

Orders of the court

1. Order absolute for a writ of prohibition prohibiting the second respondent from taking action on the decision of the first respondent made on 3 April 1998.

2. Order that time be extended and that a writ of certiorari issue to quash the decision of the first respondent made on 3 April 1998.

3. In respect of the application by the prosecutor dated 4 October 1996, Order absolute for a writ of mandamus requiring the first respondent to consider and determine the application according to law.

4. Second respondent to pay costs of prosecutor, both in respect of the order nisi and the hearing before Full Court.

Background

Background to the litigation

The issue in this case is whether this Court should grant prerogative relief to the prosecutor, by reason of his reliance upon an inadvertently made, erroneous statement by a Tribunal, at the inception of a hearing, that the Tribunal had read some relevant materials which in fact the Tribunal did not have and had not seen.The Facts A Refugee Review Tribunal ("the first Tribunal") which received his application for a protection visa summarized the prosecutor's evidence to the Tribunal in this way. The prosecutor was born on 16 March 1942 in Iran. Between 1969 and 1978 he studied in London, Munich and Paris. He returned to Iran in 1973. He claimed that he had worked for the Savak (the secret police of the Shah of Iran) for six months. Subsequently he commenced a real estate business in that country. The Shah was deposed in February 1979. A high ranking military officer who was a cousin of the prosecutor's father and a member of the Shah's cabinet was executed by the new regime. The prosecutor was thereafter involved in the illegal sale of property owned by the Shah and some of his supporters. In about 1981 or 1982 he made substantial donations to an underground counter-revolutionary organisation, the Mujahideen-e-Khalq and helped to spread the views that it propounded. Members of the Komiteh, an enforcement organ of the new regime, visited the prosecutor's premises on three occasions between 1990 and his departure from Iran, in search, seemingly, of documents that might disclose his involvement in the sale of properties of the Shah and his followers. After the first visit the prosecutor concealed relevant documents in a safe place. Following the second visit the Komiteh questioned him at the Komiteh station. The prosecutor told the Tribunal that he had worked in cooperation with a school friend, Ali Tehrani, in selling property belonging to the Shah and his supporters. He described this man as his best friend although they were in competition as real estate agents. He said that they frequently pooled their resources to conduct their businesses and that they both became concerned when the Komiteh began to display interest in them in late 1990. His evidence was that they discussed leaving Iran. He told his friend that he too should leave the country. The prosecutor said that he contacted his sister in about 1993 and that she told him that the Komiteh was looking for him. He said that his sister informed him that she had been unable to find Ali Tehrani or make any contact with him. The prosecutor said that he had learned that this man had been arrested for selling confiscated Royalist properties and had been executed by the Iranian authorities. The prosecutor contended that he believes that the Komiteh would have found out about his involvement in the sales from questioning his friend. In response to a comment by the first Tribunal, to the prosecutor, that the Tribunal did not think any of the evidence pointed to a conclusion that the applicant's friend would have given his name to the Komiteh, or disclosed information about him, the prosecutor responded that he was sure his friend would have given information to the Komiteh about him as a means of trying to save himself: that his friend would have done so because he would have thought the prosecutor to be safe having fled the country. Accordingly Ali Tehrani would have been able to provide such information in order to protect himself.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ GAUDRON AND GUMMOW JJ CALLINAN J

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Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GAUDRON AND GUMMOW JJ, CALLINAN J

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