SZBEL v MIMIA
[2006] HCATrans 522
[2006] HCATrans 522
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S274 of 2006
B e t w e e n -
SZBEL
Appellant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
GLEESON CJ
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 28 SEPTEMBER 2006, AT 10.06 AM
Copyright in the High Court of Australia
MR N.J. WILLIAMS, SC: May it please the Court, I appear with MS R.S. FRANCOIS for the appellant. (instructed by Legal Aid Commission of New South Wales)
MR S.J. GAGELER, SC: If the Court pleases, I appear with MR S.B. LLOYD for the first respondent. (instructed by Clayton Utz)
GLEESON CJ: Yes, Mr Williams.
MR WILLIAMS: The appeal raises one question of law and that is whether procedural fairness requires that notice be given of adverse factual conclusions that cannot reasonably be anticipated from the matters raised in the known evidence before an administrative decision‑maker. The Tribunal dealt with the appellant’s claims and ‑ ‑ ‑
KIRBY J: You say the question is the same as the respondent does, except that they say where the factual matters are obvious?
MR WILLIAMS: There may be two differences in the way in which the case is put. One is that there may be a difference, perhaps no more than semantic, between obvious or matters that may reasonably be anticipated. The respondent emphasises a distinction, or seeks to make a distinction, between reasoning and other conclusions, but otherwise I apprehend that the formulation of the issue is common.
KIRBY J: At some stage after you have laid the ground of the legal principle it would be helpful to me to have a list of what you say were the non‑obvious or non‑anticipator factual matters, because I am still not clear from your submissions as to exactly what they were.
MR WILLIAMS: I will turn to that matter directly. They are found from 167 of the appeal book. In particular they are found on 168, but to set them within context, at 167. The Tribunal at 167, line 35, rejects the applicant’s claim as to his reason for jumping ship as “not credible”, and we emphasise rejection of the claim. It then gives itself in the paragraph from about line 40 the customary warning about difficulties of proof faced by refugee claimants and then states at the foot of the page from about line 54 “that key aspects” of the appellant’s claim “lack credibility” in ways that it went on to particularise.
GLEESON CJ: Am I right in thinking that that which was found to be implausible is that which appears on page 159 between lines 35 and 40?
MR WILLIAMS: That is one matter that has been found to be implausible.
GLEESON CJ: I am just trying to relate the conclusion of implausibility on 168 to the evidence found to be implausible.
MR WILLIAMS: Yes, might I do that in two stages, first to identify the specific implausibility findings on 168 which were at the centre of the appeal and then turn to the evidence of the appellant concerning those matters. On page 168 from about line 10 the Tribunal states by way of conclusion that it:
considers the Applicant’s account of the basis upon which the Captain came to believe that the Applicant was involved in Christianity to be so tenuous as to be implausible. The Applicant makes no claims as to having been accused of any Christian activities while on board ship –
but that his interest in Christianity had become known to the captain because a fellow crew member from his home town had heard of it. But then from about line 22 the Tribunal reaches the specific adverse conclusions that are at the centre of the appeal. First, it states that it:
considers it implausible that a personal conversation while the Applicant is in port for ten days would attract the attention or interest of the Hezbollah and would become public knowledge such that a crew member from the same town had knowledge of it.
That is the first of the matters that we call attention to. That conclusion – I will return to the others in a moment – is not said to be based on inconsistencies in the applicant’s account or in matters of demeanour. No reference is made to either inconsistencies or demeanour anywhere in the reasons. The conclusion expressed from line 22 on page 168 in the context of the reasons as a whole can only be that the claim is implausible in the sense of being improbable or unlikely; essentially, objective matters.
That involves specific factual conclusions or assumptions, albeit concealed within conclusions about the implausibility of the claim. The evidence which I will take the Court to in a moment was that the applicant had told four of his friends in his small home town about his interest in Christianity. They had reacted badly. He thought they might have complained to their families about it, who passed it to others, and that it was passed to the Hezbollah in that way.
In no sense is it obvious or reasonably apparent why such a claim would be regarded as implausible, even with the benefit of the Tribunal’s reasons. To conclude that such a claim is implausible requires findings or assumptions that gossip about a matter such as this does not travel in that way in small Iranian towns and that it would not attract the attention or interest of the Hezbollah if it did. There was no evidence ‑ ‑ ‑
KIRBY J: Is your point that in the semi-revolutionary situation and intolerant situation of Iran that a matter of even interest in the Christian religion by a Muslim‑born person would be such a scandal that it would travel quickly? Is that what you are saying, and that Hezbollah has a pervasive role in such a society? I just do not know.
MR WILLIAMS: That highlights the difficulty. There is no ‑ ‑ ‑
KIRBY J: I imagine it would differ from a large city in Iran to a country town.
MR WILLIAMS: That may well be so. One would expect in the ordinary course that information about such matters would travel more readily in a country town.
KIRBY J: And maybe as between different cities. If you are in Mashhad it would be a highly religious town, it could go all around, whereas if you are in Isfahan maybe it would not. I just do not know these things.
MR WILLIAMS: There was no evidence on which such a distinction could be drawn, and this is at the centre of the complaint that the appellant makes. He stated what was on its face a reasonably explicable account of how this information might have passed to the ship’s captain, having told four of his friends who reacted badly, who might have told their families. The Tribunal found, without suggesting to him any particular matter that would throw doubt on that account, that it was implausible.
If one thinks about it in comparable terms in Australia, there is no obvious reason why religious conversion of reasonably significant interest might not be the subject of a discussion in a small country town, and there was nothing about Iranian towns to suggest, for example, that these kinds of matters would not be discussed for reasons of privacy or any other reason. Given the seriousness with which conversion to Christianity is regarded within Iran – and there was evidence about that – there is every reason to suppose that information of this kind would pass quite quickly as gossip within a small town, but there was simply nothing to point in the other direction and no matter raised by the Tribunal to put him on notice that this account was for some reason unacceptable.
There was no evidence, apart from his claim concerning the Hezbollah, there is no evidence that the Hezbollah was not operating in small towns, nothing of that kind to call attention to this as an issue that he may have to deal with or face a finding of the kind that is recorded from line 22.
KIRBY J: What was the name of the case that the Court dealt with in the last year about apostasy in Iran?
MR WILLIAMS: I am unable ‑ ‑ ‑
KIRBY J: It was the case where the suggestion was that there was no well‑founded fear if a person kept it quiet and practised their religion quietly. Anyway, if you can find that, I would be grateful for a reference to it.
MR WILLIAMS: It may not have been Iran, your Honour, but I will find a reference.
KIRBY J: Iran, it was.
MR WILLIAMS: I will find a reference, your Honour.
KIRBY J: I know the difference between Iran and Iraq.
MR WILLIAMS: Your Honour, there was a case, I suspect, concerning Bangladesh.
KIRBY J: No, no.
MR WILLIAMS: The second critical adverse conclusion is then at page 168 from about line 27:
Further the Tribunal considers it implausible that the Captain of the ship would accuse the Applicant of apostasy or even involvement in Christianity on the strength of comments from a crew member based on the Applicant’s personal conversations when in port, particularly given that the applicant on his own evidence had not spoken of or engaged in Christian activities on board the ship.
That conclusion involves a specific factual finding or assumption about whether a captain employed by the Islamic Republic of Iran shipping line would act on information supplied to him by a crew member from the applicant’s home town about the developing Christian tendencies of one of his fellows. Again to say that such a claim is implausible in this context is to say that it is improbable or far‑fetched.
KIRBY J: You are dropping your voice. I am not hearing all that you are saying.
MR WILLIAMS: Again, to say that such a claim is implausible in the context of a decision in which no findings are made about inconsistency or about demeanour is to say that the claim is improbable or far‑fetched. The only ‑ ‑ ‑
KIRBY J: It makes a cultural assumption about (a) the role of the captain on a vessel; (b) the extent to which the conversion or even interest in Christianity would be a matter of alarm or indifference on a ship, the extent to which crew members might report it to the captain and the extent to which the captain, as a senior Iranian official, would feel an obligation to bring it up with the person of whom it was said. I do not find it implausible in the slightest, but that is just a factual matter.
MR WILLIAMS: That is our complaint, your Honour. There is nothing on its face that suggests that it is implausible.
KIRBY J: I wonder if this Tribunal member has ever travelled in this region of the world.
MR WILLIAMS: There was no evidence to suggest that, your Honour. There was a reference in the transcript that suggested that the Tribunal member had heard other Iranian cases, but that was the extent of it. The only evidence directly touching on the matters that your Honour Justice Kirby raises is at 166, or the only independent country information directly touching on such matters is from the top of 166 at about line 5. It is a continuation of other evidence from a Department of Foreign Affairs and Trade report, but the passage at about line 5 is as close as the evidence gets to the issues, that:
While there is no Soviet‑style cadre system in operation on board, there are informal networks and cooperation among security personnel and active supporters of the government, who would take a lead in public prayers and various activities associated with good Islamic revolutionary practice.
So to the extent to which there was any evidence touching on this issue, it was evidence that tended to suggest that there may be some system that would operate on board by which information might be passed around, including to the captain.
Those two paragraphs, in our submission, at 168 are sufficient for present purposes but the paragraphs that follow also make specific factual assumptions about the level of security that would have been applied, from about line 35 to about line 50, to the appellant. The evidence, of course, was that he had been placed under observation – or his evidence was – that he had been accompanied to the medical visit that he made and that he succeeded in jumping ship by having someone else distract the patrolling officer. It was not made clear to him whether that evidence was rejected or whether some greater level of security is being contemplated in the paragraphs from lines 35 to 50.
The Tribunal at no point raised with the applicant any of these findings or assumptions and none of them, in our submission, was obvious or even one that could reasonably have been anticipated on the material before the Tribunal. The relevant evidence is in quite a short compass. The applicant’s account is at page 84 of the book. It is a count concerning these matters ‑ ‑ ‑
KIRBY J: Can I just get it very clear in my mind? If the criterion is surprise, something not expected, if that is the criterion, you say it is stating that they relied upon the fact that he was not locked up on board. Is that one of the elements or not?
MR WILLIAMS: Well, it is not completely clear what the Tribunal did find in that respect, your Honour. It is not clear whether the Tribunal rejected his evidence that he had been placed under observation and that a patrolling officer was on watch and that the Tribunal considered that a higher level of security such as being locked up would have been applied to him, or whether indeed the Tribunal has in these passages rejected his evidence about being placed under observation.
KIRBY J: So is the matter that you complained of simply that relatively short passage of two paragraphs on 168 from lines 21 to 32?
MR WILLIAMS: Those are the two principal matters that we put. We also put the third matter, which is from lines 35 to 50, that he was not put on notice in any way of the possibility of a finding that the level of security applied to him was inconsistent with the view that the captain intended to hand him over on his return to Iran.
HAYNE J: Does it sufficiently capture the first two points to understand them as being that the findings at line 22 and following and at line 28 and following depend upon a view of a society, in particular, a revolutionary society, that is not explored in the evidence?
MR WILLIAMS: Yes, your Honour. The applicant’s account concerning the first of these matters was from page 84 of the book.
KIRBY J: Just following on Justice Hayne’s question, is it your proposition that if the Tribunal member had said, “Now, hang on. I can’t accept that just because you have talked to a crew member that that would have got to the notice of Hezbollah and that the captain would have taken you to task about this because it could be very embarrassing to the captain”, that the applicant could then have said “You just do not understand the rudiments of Iranian society – Hezbollah is present on the ship. There are these people who are agents of it in the town where I had the conversation. There are cadres of Hezbollah people. They take it as their responsibility to ensure religious rectitude and no apostasy and this is how they are organised.” and so on. Is that the essence of it?
MR WILLIAMS: That is the essence of it, your Honour. If the Tribunal had raised in any way with the applicant the suggestion that it did not find plausible his account of how the information had spread within his home town and had reached the crew member from the same town and thereby the captain, or his account that it had reached Hezbollah, or his account of how the captain had acted, if it had raised that in any way with him that would have been sufficient to satisfy the requirements of procedural fairness, but it did no such thing.
GLEESON CJ: His claim to well-founded fear of future harm was based principally, was it not, upon the captain’s threat to him that he would be dealt with when they returned to Iran?
MR WILLIAMS: Yes.
GLEESON CJ: That was why it was important for the Tribunal member to consider the plausibility of his account of his encounter with the captain recorded on page 159, lines 35 to 40, where the captain made the threat.
MR WILLIAMS: Yes.
GLEESON CJ: What if the Tribunal member, having heard that evidence had said to your client, “That sounds implausible to me.”?
MR WILLIAMS: That would have given him notice that he was at risk that the evidence had been rejected. It would have given him notice that he should support his claim with more specific evidence of the kind that Justice Kirby referred to in his question a moment ago and on one view at least that would have been sufficient.
HAYNE J: There is a difficulty for you in that answer, is there not, a very considerable difficulty? If it is simply the Tribunal forming a view, why in natural justice terms does the Tribunal have to telegraph its view about the acceptability of portions of evidence until it is at the end of the process and writing its decision? You have to go, I would have thought, one step further and say that the Tribunal would have had to say to this man that is implausible because information does not travel that way in Iran. That is to provoke a factual fight.
MR WILLIAMS: Well, there may be questions of degree involved as to how ‑ ‑ ‑
HAYNE J: There are, I understand that, but if it is just a challenge in the form of “I don’t necessarily believe what you are telling me”.
MR WILLIAMS: It would certainly need to go beyond a general challenge to the plausibility of his evidence, but the answer that I gave to the Chief Justice concerned the specific evidence concerning the captain’s challenge to him. Now, on one view that evidence concerning the captain’s challenge may, had it been raised, have alerted him to the necessity to make good the elements beyond that, that the information came to the captain through the crew member, that it was plausible that it would travel in that way in a small town, that it was plausible that Hezbollah would find out about it in a small town. It may have been sufficient in raising the plausibility of that specific element that your Honour the Chief Justice raised with me to give him notice of particular elements that he needed to make good.
GLEESON CJ: Your argument may be right. I am just trying to work out how this operates in practice. It cannot be the case, can it, that the Tribunal member has to conduct a running commentary on the evidence as it is given?
MR WILLIAMS: No, we do not say that for a moment, your Honour.
GLEESON CJ: So presumably in practice what this means is that at some stage before completing and publishing her reasons for judgment the Tribunal member, having thought about it, should have then written a letter to the applicant or the applicant’s representative saying, “On reflection, I find these parts of the evidence implausible for this reason. What have you got to say about that?”
MR WILLIAMS: If the conclusion that the Tribunal member had reached on that tentative basis was one that was not obviously open on the evidence, that is the course the Tribunal member should have followed.
GLEESON CJ: But if Tribunal members sit there chattering away during these hearings, we will get claims of denial of natural justice on a different basis.
MR WILLIAMS: Yes, we do not suggest that each line or chapter or verse in any sense has to be put, but where the findings are ones that are not obviously open, as these findings were – there were, as we put it, very surprising findings on the evidence.
GLEESON CJ: Is it also part of your argument that whereas in an adversarial context a tribunal where the judge or jury is entitled to rely on the advocates to thrash out between themselves matters of plausibility or implausibility, in an inquisitorial context like this there is a higher obligation on the Tribunal?
MR WILLIAMS: Yes. The obligation in a sense is the same in each case but it is discharged in different ways. It is discharged in an adversarial setting by the definition of the issues by the parties. In the present case there was no cross-examiner. The Tribunal alone stood in the position of giving the applicant such notice as he was to get of the critical issues for determination.
HAYNE J: Can I just take you back to this proposition about conclusion not obviously open on the evidence. Does that proposition carry within it a deal of baggage? In particular, is it a proposition that either includes or depends upon assumptions about the need to have further material? I am putting it very badly. What I have in mind is you say the conclusion is not obviously open because there was no evidence denying this man’s assertion that word of this would go round the society like wildfire. Are you really saying there was a factual issue about the nature of this society that should have been explored?
MR WILLIAMS: Should have been explored if an adverse finding was to be made on it, yes.
HAYNE J: How does that fit with the notion of expert tribunal, country information, information acquired through experience of dealing with Iranian claims and the like? Inevitably the Tribunal member will have a view of the state of affairs broadly in Iran, will they not?
MR WILLIAMS: If the Tribunal member has such a view – and one may assume that Tribunal members do acquire expertise over time – then there is no difficulty in the Tribunal member relying upon it, provided that in doing so it acts fairly. If it exposes to the applicant the view that it has formed from other cases, for example, if this be the case, in small Iranian villages people do not speak about such things for some reason, if the Tribunal had evidence from other cases or knowledge from other cases, it was entitled to use it subject only to fairness, and it is fairness that we complain of.
KIRBY J: By the way, that case of the apostasy in Iran is Applicant NABD of 2002 (2005) 79 ALJR 1142.
MR WILLIAMS: Thank you, your Honour. We do not put the case as a no‑evidence case; the complaint is one of procedural fairness. Had there been specific evidence going the other way, had there been evidence about the way in which information passes within Iranian towns or about some tendency of people within the Iranian community not to gossip on such serious matters, that would have alerted the appellant to the need to deal with that as an issue. There being no such evidence – and that is subject to disclosure of such evidence in any event – there was nothing to alert him to that issue.
KIRBY J: The difficult problem is, is it not, that it is accepted there is not the need for an ongoing commentary and that your client in a sense has to make out the case of the well-founded fear before the Tribunal and that his credibility and believability of his statements are matters that at least on a prima facie basis he has to lay out before the Tribunal? There was, as has been pointed out, that passage in the country information at 165 which shows details of the type of society Iran was and that therefore he could expect that he had to somehow relate his burdens to the society as revealed in the country information.
The difficulty is where it gets to a point that there is some very particular aspect of the evidence that is believed or not believed that the Tribunal has to alert the applicant before reaching a conclusion based on that material because that process of thinking about the case goes on until the very conclusion of the reasoning process.
MR WILLIAMS: The country information served only to give him notice of matters consistent with the claim that he was making in respect of onboard security and surveillance and political interest. The process of reasoning and reaching a conclusion does indeed go on until judgment. In the great run of cases there will be no matter calling for further notice to an appellant. The difficulty arises in a case like this where the findings that are ultimately made are ones that could not have been anticipated because of their surprising nature.
CALLINAN J: Mr Williams, I have to say that I think there is some unreality about all of this for this reason, that in almost all of these cases there are going to be particular events and circumstances peculiar to the applicant, matters of which only he will be aware, partly at least, because if he is a dissenter from whatever the culture or religion is it is something that he will be trying to keep secret and he is not going to be able to produce corroboration, but these events and these circumstances are going to be often decisive and he is the only one who can talk about them and he must know when he does talk about them – and I am not talking about onus but that he will have to be persuasive about them.
MR WILLIAMS: Yes.
CALLINAN J: Here the Federal Court records at page 207 that what he particularly relied upon – and it is paragraph 4 in the reasons – were substantially the events leading up to his jumping ship and obviously everything that happened before that is relevant. That is what he is relying upon and he is the only one who can give an account of that. So he must know that he has to be persuasive about that and about any relevant preceding events. So how can he be taken by surprise? This is his account. This is his story. He knows he has to persuade the delegate, or the Tribunal, or the court, that this is right.
MR WILLIAMS: He is taken by surprise in the peculiar facts of this case.
CALLINAN J: But there are always going to be peculiar facts. That is why I used the word “peculiar” right at the beginning of my questions to you.
MR WILLIAMS: We accept, with respect, the general proposition that an applicant making claims is at risk of being disbelieved in respect of those claims and is not entitled to be told by the Tribunal in advance that the Tribunal does not accept a particular aspect of his case, but it is subject to a qualification. That is, if the Tribunal’s disbelief is based upon specific matters that could not have been foreseen ‑ ‑ ‑
CALLINAN J: But what matters did he not foresee, that he would just be disbelieved about something?
MR WILLIAMS: No, he did not foresee that he would be disbelieved on the proposition that a conversation in his home town might become the subject of gossip, reach the ears of a fellow crew member from the same town and be passed on to the captain.
CALLINAN J: Well, why not? That was a necessary part of his account.
MR WILLIAMS: It was a necessary part of his account that it had passed in that way, but the disbelief was based upon a conclusion, not based on inconsistencies in his account or ‑ ‑ ‑
CALLINAN J: It often is not. People are just not persuasive when they talk about something.
MR WILLIAMS: Because of their demeanour, for example, but it was not based on demeanour either.
CALLINAN J: Their story might appear to one person, if not to another, itself just not to be credible or plausible.
MR WILLIAMS: The story as a whole may indeed not appear credible.
CALLINAN J: Or part of it.
MR WILLIAMS: If the particular finding could not have been foreseen, then it is a matter of which the Tribunal is obliged to give notice. The particular finding here is not simply that the Tribunal rejects his account overall, although the Tribunal does that as well, but it rejects his account for specific reasons. It finds it implausible that information would pass in this way in a small Iranian town and reach the ears of the captain. Now, there was nothing in the evidence before the Tribunal to show why that was implausible or that there was even an issue about the plausibility of it.
CALLINAN J: Well, I do not know where Bandar Abbas is, I confess, but there is a basis, assuming it is not the same town as the captain lived in or other crew members – there is no suggestion other crew members lived there?
MR WILLIAMS: There is, your Honour.
CALLINAN J: There is? All right.
MR WILLIAMS: The other crew member in question came from the same small town.
CALLINAN J: All right, he came from there, but it does not necessarily follow that that would have been a communication with adverse effects to him, to the captain. He actually appeared personally in the Tribunal. He was present, I mean.
MR WILLIAMS: Yes.
KIRBY J: Essentially it seems to me it is a sort of clash of cultural expectations. He would have expected that anybody would know how Hezbollah works in small country towns and that it was self‑evident that the Tribunal would appreciate how they operate and how the revolutionary situation there operates and extends into a ship. This is not the Empress of Tasmania; this is an official Iranian vessel with a captain who has functions as an officer of the revolution. The Tribunal member, perhaps not knowing these things, would just take the view, “Well, I think that’s very unlikely that Hezbollah would – that it would get around a country town. It wouldn’t get around Gilgandra and I think it is very unlikely that it would get to the attention of Hezbollah or that the captain would give any credence or interest in it, and it’s just two ships, if I can say so, passing in the night”.
Essentially the question is whether the passages you have highlighted on 168 show a cultural norm on the part of the Tribunal member that ought to have been identified and flushed out so that he or she could be corrected of it and informed about it. That is what it comes down to, is it not?
MR WILLIAMS: We accept that. Specific factual findings or assumptions probably we accept, with respect, as to a cultural norm. It may be that a merchant seaman returning to Gilgandra with the news that he had converted to fundamentalist Islam might become the subject of discussion there too.
KIRBY J: That is probably true.
MR WILLIAMS: Certainly that it might reach the ears of a fellow crew member from the same town.
KIRBY J: That is against you because that is just a common sense and knowledge of small country towns and therefore not something that one would expect the Tribunal has to lay on the line to him.
MR WILLIAMS: If that be the case, if the Tribunal member is going to make an assumption inconsistent with it that is a matter that, in our submission, should have been raised. But we accept, with respect, that the most probable formulation is that this was an assumption as to a cultural norm.
KIRBY J: We have had a case where the Tribunal did, after the case, being concerned about a factual matter, send a letter or perhaps at the case said it would do so and did not send the letter. Do you remember what that case was?
MR WILLIAMS: I do, yes, that is NAFF; it is about two years ago, your Honour.
KIRBY J: It is very hard to remember these cases with these acronyms. I wish we could invent a name for them so that we ‑ ‑ ‑
GLEESON CJ: If they were given their real names, they might not be much easier to remember. They are not likely to be Green or Brown. Mr Williams, a possible point of view, and I am not sure where this leads in terms of your ultimate argument, is that that process of reasoning on page 168 is really building up to what the Tribunal regarded as a key point. It may be that what the Tribunal thought was really incongruous was the liberty that your client was given when in port and found that impossible to reconcile with the account of the captain’s conversation and threat, and that those earlier assertions of implausibility are really making or developing a line of reasoning leading up to that. It may be that what the Tribunal really just could not accept was that if your client was the subject of this threat to be handed over to the authorities for apostasy on return to Iran he would have been left free to wander around Sydney.
MR WILLIAMS: The evidence, though, your Honour, was not that he was left free. His account, and it is unclear of the extent to which the Tribunal has accepted it, was that he was placed under supervision, that when he had to leave the ship for medical reasons in Port Kembla because of an illness that he described as serious and there is some evidence to support that, there is evidence of a hospital admission some time after, that he was accompanied when he left the ship.
GLEESON CJ: Yes, but look at the sentence beginning on line 45 which is really the culmination of this process of reasoning. How do you give somebody an opportunity to deal with a proposition like that?
MR WILLIAMS: One way is to say “I believe that if the captain had intended to hand you over that he would have kept you under lock and key in some way”.
GLEESON CJ: But as a speculation about the captain’s process of reasoning? I mean it might be a reasonable speculation or it might be an unreasonable speculation, but how do you handle that kind of thought process in terms of procedural fairness?
MR WILLIAMS: By exposing the thought and giving the person the opportunity to deal with it. It may be that there were answers to this. He was certainly, according to his evidence, supervised, accompanied to the medical visit and when on board ship only succeeded in jumping ship through the aid of a colleague, a fellow crew member who distracted the patrolling officer. That was his account. So his account was one of significant measure of supervision at the very least.
HAYNE J: That evidence is at 29 to 30.
MR WILLIAMS: Yes, your Honour.
CALLINAN J: Mr Williams, do you say the Tribunal overlooked, and this just may be a factual matter, I am not sure, that he was accompanied to the doctor with another crew member as a kind of a minder? Does the Tribunal mention anywhere in its reasons that when he went to see the doctor he was accompanied by a crew member?
MR WILLIAMS: No, the Tribunal makes no finding about that.
CALLINAN J: I mean, it may only be a factual matter, but it is quite an important factual matter having regard to the adverse finding about freedom of movement in port.
MR WILLIAMS: Yes, in a sense it really underlines the difficulty that the appellant faced. When one looks at the findings that the Tribunal made, that your Honour the Chief Justice describes as potentially ultimate findings from about line 35, it is entirely unclear whether the Tribunal was accepting the appellant’s account that he had been supervised and there had been a patrolling officer who had been distracted and things of that kind and saying, nevertheless, “I believe that a higher level of security would have been imposed had the captain been intending to hand him over for apostasy” or whether it is rejecting that account.
HAYNE J: Well, does it come perhaps to this. If you go to the transcript of proceedings before the Tribunal you find from, really, page 22 at the head of the page through to page 24, I think, the whole of the evidence about confrontation with the captain, how the captain found out, et cetera.
MR WILLIAMS: There is one additional passage on page 21, your Honour.
HAYNE J: Right, whereabouts on 21?
MR WILLIAMS: It is from about line 15.
HAYNE J: I see.
MR WILLIAMS: This is really the background.
HAYNE J:
through their families it of was really to others and to his mullah, passed on to his mullah.
MR WILLIAMS: Yes, Hezbollah. The Tribunal records that claim as “Hezbollah” rather than “his mullah” and we accept that.
HAYNE J: Sorry, you accept which? “His mullah”.
MR WILLIAMS: “Hezbollah”.
HAYNE J: Am I right in reading the transcript as being in the form of, “Tell me what happened, what happened next, what do you say?” Do I find anywhere in the transcript any challenge of any kind to the description that is given?
MR WILLIAMS: Not on any of these matters, your Honour. The passage at page 21 is typical. There is an open question asked, an answer given. The Tribunal then continues with some open questions and then moves on to another topic. There were a couple of particular challenges. There was a challenge on a reference that he had made to not having been given the opportunity to appear before the delegate. He had an answer to that and that does not appear as an issue in the Tribunal’s reasons. There were, I think, one or two other factual matters that the Tribunal raised in terms that might have been seen by way of challenge, but none related to the subject matter on which the adverse findings were made.
HAYNE J: Does natural justice require – I will not say Browne v Dunn because there is no contrary case being put, whether by the Tribunal or anyone – but does natural justice require challenge?
MR WILLIAMS: Where the finding is one that is not obviously open, our answer to that question is yes. Particularly, to take your Honour ‑ ‑ ‑
HAYNE J: I must tell you, Mr Williams, I think there is a lot of baggage tied up in this notion “not obviously open”. I am not sure without unpacking it that the proposition has any meaning that is instantly conveyed by it.
MR WILLIAMS: We will take the Court to authorities in order to give some assistance in that respect. Can I take the Court to just one passage in further answer to your Honour Justice Hayne at page 30 as to the response that the Tribunal did make. At page 30 at about line 30, having taken evidence by way of a general account, the Tribunal then asked:
Are there things you’d like to tell me about I haven’t asked you questions about?
A. Is there any particular area that you would like me to talk about?Q. No. I’ve asked you the range of questions that I had in mind, so it’s only if you feel there’s something in particular you’d like to tell me about that I haven’t asked you a question about.
Serving to reassure the applicant that the matters that had been the subject of questioning need not be further dealt with.
KIRBY J: Can I ask you a little aside. I notice that in NAFF which you referred to, reference is made to amendments to the Act – and I think it is in section 422B – that confine the natural justice hearing rule under the Act and that was not applicable in NAFF because it is said that that came into operation on 4 July 2002, but this hearing was after that time. Is that in any way relevant to this case or is this an invocation of the constitutional requirements of natural justice?
MR WILLIAMS: The restriction from 422B does not apply in the present case.
KIRBY J: Why is that?
MR WILLIAMS: Because of the operative date. The application to the Tribunal, as appears from 116 of the book, was received on 5 June 2001 and the transitional provisions in respect of section 422B only applied the restriction on procedural fairness to cases after a particular date. I do not have that at my fingertips.
KIRBY J: You had better give us that, I think, so that we can make it clear. On the face of things, the hearing was in 2003 and therefore one would have thought that it was caught by the new statutory provisions.
MR WILLIAMS: Yes, I will find a reference. I suspect it may be common ground. It is common ground that the restriction did not apply.
KIRBY J: Just the same, I would like the reason why it is common ground.
MR WILLIAMS: Yes, your Honour. In the Federal Court the matter was dealt with in the book from 216 to 217. The key reasoning is in paragraph 45 from the foot of 216 to the top of 217 and in particular the key reasoning is in paragraph 46. Paragraph 45 summarises the principle in Alphaone. Paragraph 46 in the first sentence:
The Tribunal did not have to articulate the reasoning processes by which it came to conclusion that it reached about the Appellant’s claimed reasons for jumping ship in this case. Its rejection of the Appellant’s claim was obviously open on the known material.
That, in our respectful submission, contains two vices. First, adverse conclusions in reasoning are in no different class to other adverse conclusions if the issue cannot reasonably be anticipated from the hearing or the evidence. Either way the party is deprived of the opportunity to deal with the issue. The second critical sentence in 46 states the matter, in our respectful submission, at too high a level of generality. The fact that rejection of the claimed reasons for jumping ship – that is, his involvement in Christianity – was obviously open is not determinative of whether a fair hearing has been afforded. That rejection was based on specific adverse conclusions that were not obviously open and indeed, as we put it, were nothing short of surprising.
GLEESON CJ: Is section 424A applicable to these proceedings?
MR WILLIAMS: It was, your Honour.
GLEESON CJ: There was no suggestion that it was not complied with?
MR WILLIAMS: No point has been taken in the proceedings to that effect and none is taken now.
GLEESON CJ: Thank you.
MR WILLIAMS: If I can turn then to the legal principles. A fundamental principle of procedural fairness is that a person is entitled to have his or her attention drawn to a critical issue or factor on which the decision is likely to turn. The applicable principles are summarised in Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576.
KIRBY J: Has not this Court said something about this in Abebe or is not the starting point what we have said and then we go into the other courts?
MR WILLIAMS: This Court has quoted Alphaone with apparent approval.
KIRBY J: That is all? There has been no elucidation or elaboration of this principle?
MR WILLIAMS: No, your Honour.
CALLINAN J: Are you sure that is right? I thought we had done it in immigration cases.
MR WILLIAMS: There are two cases in which it has been quoted with approval. If it assists I can start with those. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212. Your Honours will recall that the issue in this case was one of the fairness or pitch or balance of a submission that was put to the decision‑maker. From page 218 the discussion of procedural fairness commences with a summary of the complaint and the submission. Then from 219 from paragraph 20:
The Submission thus presented the Minister with a balanced picture on topics, including likely recidivism -
and at 21, a further observation about “pitch” or “balance”. Then from 22 the principle in Alphaone is quoted.
KIRBY J: When does pitch or balance merge into the provision or the statement of fact that is surprising and ought not to have been anticipated and should have been disclosed?
MR WILLIAMS: When it could not reasonably have been anticipated.
KIRBY J: That is a somewhat circular criterion, is it not?
MR WILLIAMS: Your Honour’s question imported in part the answer that we give. The answer is matters that are not of a kind that can reasonably be anticipated must be disclosed.
KIRBY J: When do you have to reveal it? When you would not have anticipated it. When do you not anticipate it? When you ought to have revealed it.
MR WILLIAMS: In the great run of cases, the decisions that are given by tribunals or administrative decision-makers will reflect the material that was put before them in the issues that were agitated. In the great run of cases, an applicant will have no complaint ‑ ‑ ‑
KIRBY J: That is why I was looking for some other criterion such as where it unreasonably surprises a person or where it is of a specificity or particularity that is beyond that which would routinely come up in that type of case.
MR WILLIAMS: The fundamental touchstone is the entitlement of a person to have his or her attention drawn to the critical issue or factor on which it is to turn. Moving one level beyond that, there are a variety of expressions that could be applied.
KIRBY J: A fundamental touchstone may be fairness.
MR WILLIAMS: Yes.
KIRBY J: Sir Robin Cooke used to say that all of modern administrative law can be summed up in lawfulness, fairness, non-irrationality, but then you have to flush that out or unpack it as Justice Hayne says.
MR WILLIAMS: Yes. The unpacking in many cases, in the great run of cases, will not involve any obligation to notify an applicant of the disbelief or the reasons for rejection of claims. As with all natural justice cases, the decisions will be heavily factual context dependent. We emphasise here the surprising nature of the conclusions which the Tribunal reached on the matters to which we have drawn attention. Where the line is between surprising and obvious matters that can reasonably be anticipated may involve questions of nuance.
From 219, having quoted Alphaone, the joint judgment proceeds on the following page to set out some of the evidence. From paragraph 24, the particular submission is put that the submission:
that the Australian community would expect the prosecutor to have his visa cancelled was “adverse material” within the meaning of the authorities.
That claim is rejected. In the following paragraph, reference made to Aala, in which:
the decision-maker, the Tribunal, had so conducted the matter that the prosecutor was deprived of a fair opportunity to correct an erroneous and factual assumption relevant to his credibility -
That is described as a very long way from the particular facts under consideration in Palme.
GLEESON CJ: Which part of Alphaone do you rely on? I am just looking at the paragraph quoted at the bottom of 219.
MR WILLIAMS: Yes. The sentence beginning:
It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.
GLEESON CJ: “Its nature” must mean the nature of the decision.
MR WILLIAMS: Yes, critical issue, and it then ‑ ‑ ‑
GLEESON CJ: So you have to identify an issue which is critical to the decision which is not apparent from the nature of the decision or from the terms of the statute under which the decision is made.
MR WILLIAMS: Yes, and we particularly rely on the following sentence.
HAYNE J: The not obviously open proposition may have to find application in two kinds of case: “I don’t believe you because I assess you not to be a witness of truth”; “I don’t believe you because not only do I assess you as not a witness of truth, but I base that conclusion on your testimony being inconsistent, in this case, with my understanding of the way in which Iranian society works”.
The first case, “I assess you not to be a witness of truth”, what can the Tribunal do except say, “Gee, I’ve got doubts about what you’re telling me”? The second case may – it may not – require something more: “Not only do I not believe you, but I don’t believe you because what you’re telling me is implausible” – the word used here – “and it’s implausible because”, and it is the absence of the explanation of what follows the word “because” which seems to me your case comes down to, be it good, be it bad, but you have to go that further step of saying, “It’s implausible because”, and, “You should have told me what the because clause was because I could have met it”.
MR WILLIAMS: Yes, we accept that characterisation of our case, with respect.
GLEESON CJ: Unfortunately, the ring of truth sounds differently in different ears.
MR WILLIAMS: The ring of truth in a general sense in the first of the senses that his Honour Justice Hayne just described is one which the Tribunal is not, in our submission, obliged to disclose. If the Tribunal simply finds the appellant not to be a credible witness and disbelieves the evidence given, the Tribunal is under no obligation to foreshadow that to the applicant. On the other hand, if the Tribunal finds that the claim is not acceptable for a specific factual reason that could not reasonably be anticipated from the evidence, then it must disclose it.
GLEESON CJ: If the Tribunal says to itself, “I find it very hard to believe that that captain would have let that person off the ship, even to get medical treatment in those circumstances, if the captain had in mind turning him over to the authorities when they got back to Iran”, what does the Tribunal then do?
MR WILLIAMS: The Tribunal member can put that to the applicant for response. There was evidence as to the seriousness of his illness. The difficulty in the present case with the collective reasoning or cumulative reasoning that your Honour the Chief Justice described to me some little while ago is that the findings are each expressed to be independent specific findings. They are, it is true, treated collectively then as a reason for disbelieving his claim, but the implausibility of his account is the subject of a series of specific detailed findings of a kind which, as we put it, could not reasonably be anticipated.
Your Honours, the other decision in this Court in which Alphaone has been dealt with is Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437. The passages dealing with procedural fairness are from page 448 of the volume. The complaint is identified in [47]. The argument identified in paragraph [48] on page 448 by reference in the footnote to the relevant passage in Alphaone. The matters that the Tribunal member did raise are then referred to in [49] and in paragraph [50]:
The scepticism of the tribunal member about the rape claim was so natural a reaction to the lateness with which it was put forward that the prosecutrix herself anticipated and attempted to deal with the criticism.
There is then a recounting of the evidence in that respect. So this was not merely a claim that was reasonably capable of being anticipated or obvious or whatever epithet is applied, but one that was in fact contemplated and dealt with. Then on page 449 the conclusion at [52] and [53] and the explanations are from paragraph [54]. The conclusion is expressed and it is a conclusion that is, in our submission, consistent with the principle we articulate in this case. So it is not a case in which the appellant submits that the Tribunal was obliged to set out every detail of the reasoning process.
Now, in that case, your Honour Justice Kirby dissented and the reasoning in that respect is at page 460 at paragraph [104]. Your Honour reached a different conclusion on the facts, as it were, as to the extent to which it should reasonably have been anticipated.
GLEESON CJ: Did you tell us that this case dealt with Alphaone?
MR WILLIAMS: Yes, your Honour. It dealt with it implicitly. I believe this may be the case to which his Honour Justice Callinan was referring a moment ago. It dealt with it at 448, paragraph [48]. The argument is articulated in what is a quote from Alphaone. That is referred to in footnote 6 at the foot of the page. Implicitly the reasoning that the joint judgment is applying in this passage is consideration of the approach in Alphaone against the facts of the particular case.
HEYDON J: Footnote 7 refers to it as well.
MR WILLIAMS: Yes, thank you, your Honour. Your Honour Justice Callinan reached essentially the same conclusions as the majority for reasons that are given in summary form on page 469 of the report.
KIRBY J: I note that in that case of Re Ruddock at 458 at the top of the page in paragraph [89] I referred to the “cultural, religious, marital and personal factors” that might have inhibited the applicant in that case that were not shared with the Tribunal member. It is just part of the reality of different cultures listening to each others’ stories. Most Australians would not have any idea of what the society of Iran within Iran is really like, no idea, except what they see on television for 10 minutes now and again.
MR WILLIAMS: Yes, that may be the difficulty that has given rise to the problem in the present case. Your Honours, there were two earlier Federal Court decisions that underlay Alphaone, first a decision of Justice Gummow in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472. The issue is identified in the headnote at point (4) of the headnote:
A critical factor in the decision of the delegate was the absence of corroborative material. There was a need to alert the applicant to that critical factor.
The relevant passages are from page 480 of his Honour’s judgment. At the top of page 480 immediately above the heading “Procedural fairness”:
However, that raises the next question. This is whether, in the circumstances, there was a want of procedural fairness because no opportunity was given to the applicant and his legal advisers to supplement the perceived deficiencies which, unless corrected, would be regarded by the delegate as fatal deficiencies.
His Honour then refers to passages of the handbook and to some authorities. The critical passage begins at the foot of page 480, going over to 481:
But, as counsel for the applicant pointed out, his complaint was to a different effect, being the failure to alert the applicant and his solicitors of the need for corroborative material which was perceived by the decision maker, if the decision was not to go against the applicant.
As a general proposition, the obligation to accord a hearing does not usually carry with it an obligation to direct the attention of the person in question to omissions in his case . . .
The decision maker has to adopt what in the circumstances of the case is a reasonable and fair procedure –
referring to Justice Brennan in Kioa v West –
Ordinarily, an applicant for an entry permit cannot complain if, without further notice, the material that he puts forward is rejected –
reference again to Kioa v West, this time Justice Mason –
But, as Mason J emphasised in the passage cited above, in a particular case fairness may demand that the applicant should have an opportunity to reply to matters raised against him.
There is then the reference given to that from Kioa v West. The next paragraph:
In the present case, as matters transpired, a critical issue or factor, to use the expression of Mason J, on which the administrative decision was likely to turn was the absence of corroboration of claims and assertions made on various matters by the applicant. There was a need to bring that critical issue or factor to the attention of the applicant or his solicitor.
There is then discussion of that and at the foot of that paragraph:
In the present case, the attitude of the delegate as to what would be required by way of probative material on a number of issues was of central importance to the decision-making process she adopted in deciding to accept the recommendation of the Panel to maintain the decision refusing the application for the grant of resident status.
The principle was addressed again two years later in Somaghi v Minister (1991) 31 FCR 100. The facts in Somaghi are summarised in the first two paragraphs of the headnote: a letter written by the applicant to the Iranian Embassy expressing opposition to the then current Iranian Government. The application for refugee status rejected:
because the decision-maker concluded that, in writing to the Iranian Embassy, the appellant had not acted in good faith. This conclusion was never put to the appellant.
Justice Keely was in the minority in this case. The judgment of Justice Jenkinson, the first of the majority judges, commences from page 105 in which his Honour agrees:
in the conclusion of Gummow J that the appeal should be allowed on one ground.
He then states his own reasons for doing so. Those reasons are found from page 108 of the volume. The passage on which we rely starts from the centre of the page, “The reasons for judgment of Keely J” and runs to the foot of page 108. The judgment of Justice Gummow concerning procedural fairness commences at 118. The key passages concerning procedural fairness commence at 119. The second full paragraph:
The finding as to lack of good faith was of particular importance to the conclusion that the appellant had not become a refugee sur place”. It was the very question as to whether the appellant had become such a refugee which had moved the DORS Committee to reconsider his application. The primary judge held that the decision-makers “were entitled on the material before them” to take the view that the appellant “had contrived the idea of writing to the Iranian Embassy simply to create his status as a refugee sur place”. His Honour said that this “was a conclusion reasonably open to the decision-makers”.
His Honour then refers to authority, particularly Kioa v West and at the foot of the page, the last paragraph:
However, in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant’s interests which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or materials provided by the third party, but what is seen to be the conduct of the applicant in question.
CALLINAN J: Mr Williams, I am sorry to take you back to the facts, but reading page 22, which is the Tribunal hearing and the questioning by the Tribunal member, is it not possible to read that page, and perhaps a little of the preceding page, as an expression of if not disbelief but of a need to be satisfied or convinced about the matters with which it deals? Take the last question on the page:
So how did the captain have any idea of your interest in Christianity?
It is possible, I think, to read that as an interrogation which is expressing a degree of incredulity about what is being told in which event your client would have been on notice.
MR WILLIAMS: There is nothing in the words themselves, in our submission, that ‑ ‑ ‑
CALLINAN J: It may depend on the expression, but I am not too sure that there is not something in the words. Look at the previous question:
What do you mean, “there’s not such a thing”?
MR WILLIAMS: Well, what is occurring in this passage apparently is some difficulty of language, whether in the interpretation or not, the evidence does not show, but there is an expression used at about line 25, “There’s not such a thing”, that might reasonably be thought to be the source of confusion or difficulty. It is an unusual use of the language that my have been the interpreter’s or the appellant’s. The evidence does not show.
CALLINAN J: But that does not explain the last question.
MR WILLIAMS: Well, the question that is asked is an open one:
So how did the captain have any idea of your interest in Christianity?
There is then an explanation given.
CALLINAN J: But he is on notice. He is on notice that that is a matter that the Tribunal thinks relevant. Conceivably it could be critical. Well, obviously it could be critical, because he says he is at risk of the captain.
MR WILLIAMS: Well, the Tribunal asks those questions, but does not in any way follow that up with any kind of suggestion of disbelief or difficulty with the account given.
CALLINAN J: Of course not, because the Tribunal has to weigh up the whole story at the end, but it is a form of notice of a matter with which the Tribunal is concerned, obviously. It is saying, “What about this? What do you say about this?”
MR WILLIAMS: Well, he then gives an explanation. One of the ‑ ‑ ‑
CALLINAN J: The Tribunal does not have to say, “I accept that explanation”.
MR WILLIAMS: No, but if the Tribunal is to disbelieve that explanation ‑ ‑ ‑
CALLINAN J: But the Tribunal does not know at that stage. The Tribunal does not know until the Tribunal weighs up all the evidence and hears the rest of it. Somebody suggested to you before that there cannot be a running commentary.
MR WILLIAMS: We do not submit for a running commentary although there were matters, and one example is at page 19 on which the Tribunal expressed its scepticism. At about line 10 on page 19 the Tribunal challenged him about the account that he had given about contact with his family and says from about line 14 that the statement refers to a different account. He then goes on to explain exactly what he did mean.
CALLINAN J: But that is a contradiction. That is different from a mere account. The Tribunal there has identified a contradiction. So what do you say about the contradiction?
MR WILLIAMS: He gives an explanation which is then further elaborated by the interpreter which the Tribunal apparently accepts and takes the matter no further. So when the Tribunal has raised such matters, he has dealt with them and the Tribunal has accepted it. But the passage on 22, in our submission, does no more than to ask him the open question of how the captain found out. He gave an explanation of how the captain found out. There is some further explanation of that over at the top of 23 by way of clarification perhaps of the interpretation. Further evidence is given, and there is no suggestion the Tribunal simply moves on.
There is no suggestion in what follows that the Tribunal regards the account as in any way implausible, given in a manner that is by reason of demeanour unacceptable, or in any way the subject of scepticism; a view that is reinforced when the Tribunal asks him the general question to which I have called attention at page 30 whether there were other things that he wanted to deal with, and by way of clarification says:
if you feel there’s something in particular you’d like to tell me about that I haven’t asked you a question about –
and he then goes on to explain some matters and in particular at about line 53, the first question about contact, he then goes on to give an explanation about it.
GLEESON CJ: The Tribunal expressed fairly heavily scepticism on page 36 when the pastor from the particular church gave evidence. The Tribunal says, “How does it come about that all Iranians belong to your church at Castle Hill?”
MR WILLIAMS: Yes.
KIRBY J: That itself suggests a cultural norm. Of course if there are people of their own language and culture, they will gather together for refuge. I mean, I do not find that at all surprising.
MR WILLIAMS: Which is the very explanation the pastor gives.
GLEESON CJ: It is a fairly broad indication of scepticism, is it not?
MR WILLIAMS: It is an indication to one witness, not the ‑ ‑ ‑
GLEESON CJ: It is about as blunt a suggestion as you can get that these people have all put their heads together.
MR WILLIAMS: That is put directly and the evidence of the pastor gives an explanation as to why they would be all in one church given their linguistic and cultural ‑ ‑ ‑
GLEESON CJ: I am just suggesting to you that when you read the whole of the evidence of the proceedings before the Tribunal, by the time the hearing ended the Tribunal was displaying an attitude of scepticism.
MR WILLIAMS: Certainly that passage, we accept, indicates an attitude of scepticism but nothing in that passage indicates the possibility that his claims would be disbelieved on the particular findings that were made. The Tribunal might have drawn inferences from the very matter it raised with the pastor at page 36 at about line 25, but it did not.
KIRBY J: As I understand it, your complaint is that the same scepticism was not disclosed in relation to the matter that was decisive for decision.
MR WILLIAMS: Precisely.
CALLINAN J: But that would impose an intolerable burden on a tribunal. A tribunal has to express scepticism as and when every question and answer is given that no concluded view has been reached.
MR WILLIAMS: No, we do not put it that high. We do not say that there is an obligation to express scepticism first as it happens or in respect of each matter.
CALLINAN J: So what are you saying, that if scepticism is expressed two or three times it must be assumed that there is no scepticism about anything else at all?
MR WILLIAMS: No, we do not put that either, although the fact that scepticism is expressed on particular issues which are then taken no further after explanation is one fact in the overall context of deciding whether the hearing was fair.
CALLINAN J: That leaves no time or opportunity or desirability of deliberation afterwards. Tribunals and courts do not make up their minds about everything on the spot.
MR WILLIAMS: We do not say that this had to be done during the hearing, nor do we say that if the matters that the Tribunal formed an adverse view about had been reasonably apparent during the hearing the Tribunal was under any obligation to raise it. The particular complaint is the specific factual assumptions or findings were matters that were, as we put it, nothing short of surprising and they, unlike other matters, were not raised. Of course, your Honour the Chief Justice will have seen the explanation that was given on page 37 at about line 20 for one of the reasons why there was a large congregation.
GLEESON CJ: That is the explanation given by the representative I presume, is it?
MR WILLIAMS: Yes.
GLEESON CJ: Or the witness?
MR WILLIAMS: Yes, that is so. Your Honours, there is two recent decisions of the United States 2nd Circuit Court of Appeal that provide a particularly useful analysis of the issues that are under consideration. The first of them is the decision in Ming Shi Xue 439 F 3d 111. This is a decision delivered on 21 February this year. At page 113 ‑ ‑ ‑
KIRBY J: This is Judge Calabresi, is it?
MR WILLIAMS: It is, yes.
KIRBY J: A very well respected judge of that court.
MR WILLIAMS: Yes, at page 113 the judgment commences with introductory remarks that provide an insight into the difficulties to which immigration claims and appeals give rise in the US in terms that may resonate with observations of Australian courts in recent years.
KIRBY J: What page are you referring to?
MR WILLIAMS: Page 113, toward the foot of the page, the commencement of his Honour’s judgment, the joint opinion, the passage commencing “Asylum petitions” and going through over 114 to the top of the right‑hand column. There is then a reference to Majidi in the right‑hand column:
To hold, as we did in Majidi, that inconsistencies that are “dramatic” – that is, sufficiently conspicuous and central to the applicant’s claim as to be self‑evident – need not be affirmatively announced is, we reaffirm, both right and wise. It is equally true, however, that when an inconsistency is not self‑evident, an IJ may not rely on it to support a credibility determination without first bringing the perceived discrepancy to the alien’s attention, thereby giving the alien an opportunity to address and perhaps reconcile the seeming inconsistency, to the IJ’s satisfaction, at the least.
KIRBY J: I have lost where you are reading now.
MR WILLIAMS: I am sorry, I am reading from the foot of the judgment at 114 right‑hand column. At about point 3 on the page there is a reference to Majidi. I read the passage from there over to the top of 115 just above the heading “BACKGROUND”.
KIRBY J: Yes, thank you.
MR WILLIAMS: The discussion of principle commences from page 118. The first paragraph deals with the very high level of deference that is given to credibility determinations and to the narrow scope of review as a result. The second paragraph, paragraph [5], states the basis of the decision. The right‑hand column in paragraph [6] then summarises the powers of an immigration judge, including a reference to section 239 of the Immigration and Nationalization Act stating that an immigration judge:
“shall administer oaths, receive evidence, interrogate, examine, and cross-examine the alien and any witnesses.”
A passage on which the Minister places reliance.
GLEESON CJ: Are the proceedings before an immigration judge adversarial?
MR WILLIAMS: They are to some degree and to some degree they are not. The INS is represented and cross-examines but there are observations about that in the passages that I am about to take the Court to.
KIRBY J: Is the Department represented before the Refugee Review Tribunal?
MR WILLIAMS: No, your Honour. The reference from about point 5 on the right‑hand column of 118 refers to a decision, In re S‑M‑J:
“the [Immigration and Naturalization] Service and the Immigration Judge both have a role in introducing evidence into the record.”
There is then an explanation:
of the bifurcated process experienced by many asylum applicants, whereby applicants begin with a nonadversarial approach at a Service Asylum Office ‑ ‑ ‑
GLEESON CJ: Does that correspond with our delegate?
MR WILLIAMS: Yes:
and move to a more ‘adversarial’ proceeding before an Immigration Judge ‑ ‑ ‑
GLEESON CJ: Which corresponds with our Refugee Review Tribunal?
MR WILLIAMS: Yes:
a cooperative approach in Immigration Court is particularly appropriate.”
Then there is a quote from Giday v Gonzales going over to the top of 119:
(“An immigration judge, unlike an Article III judge, is not merely the fact-finder and adjudicator but also has an obligation to establish the record.”)
GLEESON CJ: I am not sure I understand the meaning of that expression “has an obligation to establish the record”.
MR WILLIAMS: The point being put is that, although the INS is represented and cross-examines, if there are matters on which the INS does not cross-examine that the immigration judge regards as material, the judge has an obligation to pursue those matters despite the failure of the INS representative to do so.
GLEESON CJ: So that is why they have been described earlier as more adversarial proceedings but presumably not entirely adversarial proceedings.
MR WILLIAMS: That is so. At page 122 three lines of reasoning are given for the conclusion reached in the case. The top left‑hand side of 122:
First, in the parallel context of cases where an IJ finds that corroborative evidence is required –
so the Broussard position –
to support the asylum petition, we demand that immigration judges give refugee seekers an opportunity to address and, where possible, rectify perceived deficiencies in their testimony.
The reason for that is given in the right‑hand column from about point 5:
it is also error for an IJ to find an applicant’s testimony inconsistent without first raising the putative discrepancies during asylum proceedings so that the petitioner has a chance to provide what may be satisfactory explanations for the supposed problem. Without this requirement, asylum applicants would frequently be denied the opportunity to clarify genuinely consistent testimony that the IJ has unwittingly misconstrued. And, conversely, immigration judges could prematurely decide that testimony is inconsistent when, in fact, the purported discrepancies readily admit of explanations which the IJ would find valid.
The second reason is then considered:
where a petitioner’s testimony was seemingly too vague, we have asked immigration judges to request additional details before concluding that the narrative was not credible.
That analysis goes over to 123. The conclusion in the top of the right‑hand column on 123 is apposite here:
Beneath most compilations of written and testimonial evidence, there lie many possible subterranean inconsistencies and implausibilities that could be unearthed and held against the petitioner. For them to surface for the first time in an IJ’s final decision prevents the asylum seeker from explaining – perhaps to the IJ’s satisfaction – why the perceived concerns are not, in fact, problematic.
GLEESON CJ: Mr Williams, why in paragraph [8] does this judgment use the language of asking or recommending or encouraging?
MR WILLIAMS: I am unable to assist your Honour in relation to that.
HAYNE J: We have moved outside the Article 3 system, have we not? When we are in the Immigration Judge we are into an essentially administrative body, are we not?
MR WILLIAMS: Yes, although there is a contrast in language between the passage to which your Honour the Chief Justice refers and the rather more forthright expression at the top left‑hand side of 122. It is unclear whether it is expressing a less firm instruction to Immigration Judges or simply expressing a requirement in less emphatic terms. At 123 the final reason is given in the right‑hand column, paragraph [9] at the foot of the page, “an IJ must actively appraise the explanations” that are given. The approach in that case was followed by a differently constituted court of the 2nd Circuit in Zhi Wei Pang.
GLEESON CJ: Just before you pass from that case, I notice that in paragraph [10] there is some language that I thought you may rely on. It refers to a:
requirement that an alien be given a meaningful opportunity to explain purportedly improbable or inconsistent testimony -
Is that not what you say is this case?
MR WILLIAMS: We do, your Honour.
CALLINAN J: Mr Williams, are you as confined as that? I just wonder whether it might not be possible for you to say that the Tribunal failed to take into account a relevant matter - you tell me whether there is any reference to this in the Tribunal’s reasons – that the insistence upon the applicant’s being accompanied to the doctor by another crew member. Did not the Tribunal find that as a factor that he was able to go to a doctor for treatment in Australia as militating against his claims?
MR WILLIAMS: The Tribunal accepted, we think, that he went to the doctor.
CALLINAN J: Yes, but I thought there was a reference somewhere in the reasons to freedom of movement when he left the ship.
MR WILLIAMS: Yes.
CALLINAN J: He is not free to move if he is under supervision by another crew member on the insistence of the captain.
MR WILLIAMS: Yes. We put that not as a mandatory consideration but we put that as a matter that in fairness ‑ ‑ ‑
CALLINAN J: Why cannot you say that that is a relevant fact, that it is obviously a key fact or it may obviously have been a key fact in the finding against you? Freedom of movement, which I take to be freedom of movement in Australia. But that overlooks or it does not have regard to the uncontradicted relevant fact that it was not freedom of movement. He was under supervision on the insistence of the captain and it was a matter about which he was very frank because I see in the material there are documents which corroborate that he actually went to a doctor and that he was treated, which was not suggested to him that he should have brought forward evidence from that doctor or anything of that kind. I am not suggesting the Tribunal should have explored that but there was no exploration of that by the Tribunal. Why cannot you say that this is a relevant matter which should have been but was not taken into account?
MR WILLIAMS: Perhaps our first difficulty in that respect may come from the terms of our notice of appeal.
GLEESON CJ: I was thinking that. You have a problem with the way you have conducted the appeal but, if you relied on that, not as the basis for a ground of appeal that you do not have but as a practical example of the unfairness involved in not giving your client an opportunity to deal with these supposed sources of improbability, that would fall within your ground of appeal, would it not?
MR WILLIAMS: Yes. We do put it in that way. We put it in that way in express terms in our submissions in reply, although also in‑chief, that there was no real opportunity to deal with the issue and even now exactly what the Tribunal did find in that respect is by no means clear.
GLEESON CJ: Sometimes the best evidence of a denial of procedural fairness is a mistake.
MR WILLIAMS: Yes. Certainly in the present case there was evidence, not merely of him visiting the doctor, but there was evidence at some stage, it is not clear when, of him being referred to Wollongong Hospital, I think, in respect of the matter that ‑ ‑ ‑
CALLINAN J: The condition of which he complained to the doctor does not seem to have been inconsistent with stress or aggravation by stress and worry.
MR WILLIAMS: Indeed. He did say explicitly in his statement that the – this is at 86, at about line 20:
I sought permission to get medical attention, and I believe that the Captain only allowed this out of fear that I may die on board of the ship and therefore become his responsibility.
So he was not ‑ ‑ ‑
CALLINAN J: Was not challenged about that either.
MR WILLIAMS: He was not off for a check-up. So we do rely on it as a matter going to fairness.
CALLINAN J: You certainly rely on it the way in which the Chief Justice put it to you.
MR WILLIAMS: Yes. Perhaps for completeness before leaving Xue’s Case there is a summary of the Court’s findings from page 125 from paragraph 11 through to the foot of the right‑hand column. The second of the decisions of the US Court of Appeal upon which we rely is that of Zhi Wei Pang v The Bureau of Citizenship and Immigration Services 448 F.3d 102. The majority opinion commences at 105. It is an opinion of Justice Cedarbaum. Judge Raggi concurs in a separate opinion, differing in one particular aspect. On page 107 in the left‑hand column the factual context is referred to. In the second full paragraph:
Pang challenges the adverse credibility finding, which formed the sole basis for the IJ’s denial of his application. The eight inconsistencies identified by the IJ may be classified into two categories. First, there were several alleged inconsistencies between the statements Pang made in his 1993 application for asylum and the statements he made in his second application and at the hearing. Secondly, the IJ found that there were several other inconsistencies between Pang’s testimony at the hearing and the statements in his second application, that certain aspects of Pang’s testimony were implausible -
The principles under the heading “DISCUSSION”, principles for the most part not directly applicable here, are set out, but at the foot of the right‑hand column on 107 immediately above the heading:
Adverse credibility findings may also be overturned when the applicant is not given an opportunity to explain “non‑dramatic putative contradictions or incongruities” –
and there is a reference to Xue’s Case. The majority opinion then starts with the heading “THE 1993 ASYLUM APPLICATION” and this is a matter in which Judge Raggi agreed. At page 108, the second part under the heading “B. THE IJ’s OTHER FINDINGS”, these are the subject of a separate opinion in which Justice Raggi disagreed. Page 109, the right‑hand column, sets out the principles.
GLEESON CJ: The test seems to be whether it is dramatic.
MR WILLIAMS: Yes, dramatic in the sense, we think, referred to in the opening passage in Xue’s Case, “sufficiently conspicuous and central to the applicant’s claim as to be self‑evident” was the way in which it was put in Xue’s Case. That was in a sense a definition of what was meant by “dramatic”. That is at page 114 in the report in Xue. The obligation is stated from the foot of 109:
When putative inconsistencies or implausabilities are not dramatic and the need to clarify is not obvious, an IJ has an obligation to inform the petitioner that his testimony is being viewed as potentially flawed, and the IJ must give the petitioner a chance to explain.
There is then a reference to Xue, and over the page onto 110 in the left‑hand column at about point 5 just above the first full paragraph on 110, in partial answer to the question that your Honour the Chief Justice asked about developing the record:
But when the government’s cross‑examination does not put the applicant on notice of a putative flaw, the government’s cross‑examination cannot absolve the IJ of the responsibility to make the applicant aware that an explanation is necessary.
So this is the development of the record. Now, there is a further development of the matter that your Honour the Chief Justice raised at about point 5 of the right‑hand column on 111:
An IJ has an affirmative obligation to help develop the record in immigration proceedings. Secaida-Rosales, 331 F.3d at 306. An IJ also has an obligation to give a petitioner a chance to clarify non‑dramatic contradictions and implausibilities. Ming Shi Xue, 439 F.3d at 125. We have noted that giving a petitioner the opportunity to explain purported testimonial flaws does not mean that the explanation must be credited. Id. at 126. A properly developed record, however, might have revealed enough facts to allow the IJ to determine that discrepancies existed without resorting to speculation and conjecture ‑ ‑ ‑
GLEESON CJ: What is the legal source of the obligations referred to in paragraphs [21] and [22]? Is it statute? Is it some principle of law arising outside statute? I would just like to understand the jurisprudential context in which this reference to obligations is being made.
MR WILLIAMS: It appears to find its source in the reference in Ming Shi Xue. At page 118 in Ming Shi Xue there is a reference to 239 of the Immigration and Naturalization Act.
GLEESON CJ: So it is statutory?
MR WILLIAMS: Yes, the generally expressed power or perhaps obligation:
an IJ “shall administer oaths, receive evidence, interrogate, examine, and cross‑examine the alien and any witnesses.”
GLEESON CJ: What I am trying to understand is the relationship, if any, between this obligation to complete the record and our common law principle of procedural fairness, ie, if we are being invited to import into our common law principle of procedural fairness these obligations being described, then for my part at least I would like to understand better than I do at the moment the source of the obligations.
MR WILLIAMS: To the extent to which the obligations are disclosed in the reports, they appear to be in statute and in the jurisprudence of particularly the Court of Appeal’s concerning the working through of what is required to provide an adequate hearing or an alien seeking a status determination. The language of procedural fairness or natural justice finds no place in the judgments. The underlying principles, as the opening remarks of Justice Calabresi made clear, appear to be founded in the same kinds of issues or difficulties arising in Australian courts with respect to the Refugee Review Tribunal.
GLEESON CJ: I am wondering again if this is related to that language of encouragement and request that we noticed earlier. I understand that we and they have common problems. I am just at the moment a little at a loss to understand how the obligations that they require or encourage immigration judges to fulfil translate into our concept of procedural fairness.
MR WILLIAMS: We cannot put that there is a direct translation of concept. The observations are no more than a closely considered analysis of the precise kind of issue that arises in a factual sense.
GLEESON CJ: Well, one of the challenges of comparative law is to understand what is being compared.
MR WILLIAMS: What is being compared is a process that has, we submit, a close analogue with the RRT, a process in which the immigration judge has a duty to perform an inquisitorial one. True it is one in which the powers are expressed more particularly than the RRT’s powers because there is an explicit reference to examine, cross-examine and such matters, but nevertheless a not dissimilar procedure for considering claims of a common kind.
HAYNE J: Can I just explore that a little further. Is the premise for the United States cases a premise that, insofar as it depends on section 239 on the Immigration and Naturalization Act a premise that the immigration judge shall inquire into the truth of the claim?
MR WILLIAMS: We do not read the cases as going that far, your Honour. They impose, in terms, an obligation to develop the record as it is expressed, but that is put in the way that we have indicated as an obligation to give the alien the opportunity to deal with the issues that arise.
HAYNE J: How does it fit with the set of provisions that – and you can trace them through in several ways, but section 415, the root provision governing the powers of the Tribunal, that:
The Tribunal may . . . exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
Section 65, “Decision to grant or refuse to grant visa”. Neither of those provisions standing alone suggests a need to do more than adjudicate upon or pass upon what the claimant puts forward. Neither of those provisions standing alone seems to suggest an obligation to go out to find out where objective truth lies in the matter.
MR WILLIAMS: Nor, as we read the US Court of Appeal decisions, does the American system in which, in contrast to our own system, the alien bears an onus ‑ ‑ ‑
HAYNE J: Then provisions like 424 about the Tribunal seeking additional information are all cast permissively but when you look at the provisions as a whole I am not struck by any proposition that the Minister, the delegate or the Tribunal are to go out and find something in the nature of objective truth.
MR WILLIAMS: The decisions in question specifically eschewed a finding that goes that far. In Xue in footnote 18 the matter is dealt with at page 125.
HAYNE J: In particular, the quote from Diaz-Escobar that it is in effect for the alien to make the claim and carry the burden.
MR WILLIAMS: Yes. We do not put anything in this case to suggest that the Tribunal had such an obligation. The obligation was simply one of fairness.
HAYNE J: In the Pang Case the particular matter that seems to be at the heart of the particular factual matter is recorded at 111 in the first column and the finding of implausibility that various people, either hospital employees or family planning cadres, did not pursue questions about the birth of, I assume, a second child. This notion of implausibility may itself be ambiguous.
MR WILLIAMS: Implausibility may and in many contexts it may be language used to express a conclusion of disbelief based on a combination of reasons of an applicant’s claim. In the context in which the findings of implausibility appear in the present case, that is a context that includes no reference to inconsistencies or demeanour or disbelief or rejection of the applicant’s credit as a witness save for one passing reference back. The conclusions of implausibility here are conclusions that the account was improbable or unlikely. That is the only way in which they can be read, in our submission. To complete the reference to Pang, the conclusion is expressed on page 111 in paragraph [21, 22] of that single paragraph and there is then the concurring opinion at 112 of Justice Raggi.
Your Honour Justice Kirby raised with me the question of the operation of section 422B. If your Honours have Reprint 9, that is dealt with at the top of page 710 of the reprint, subclause (5):
The amendments made by items 5 and 6 apply in relation to any application for review made on or after the commencement of those items.
In short, in respect of each matter which the Tribunal did raise by way of challenge the applicant addressed the material and appears to have satisfied the Tribunal. In respect of the key findings that we refer to, no challenge was made and, with respect, should have been.
GLEESON CJ: Thank you, Mr Williams. Yes, Mr Gageler.
MR GAGELER: Your Honours, I propose to say something first about the underlying principle, then about its adaptation to the particular statutory scheme and then its application to the particular case. The underlying principle as Lam, for example, illustrates is that what is required by procedural fairness is a fair hearing, not a fair outcome.
Fairness in the outcome when the outcome is judged against the material before the decision‑maker is something which can be challenged but which, if it is to be challenged, is to be assessed against a conceptually distinct principle with a threshold of irrationality or illogicality. A ground of that nature was raised in the courts below. Indeed it was ground 1 before the magistrate. It was unsuccessful in the courts below, before the magistrate and before the Federal Court, and it is not raised in a sole ground of appeal.
The elements of a fair hearing on any classical or contemporary exposition of that concept are twofold. The first is that the person affected have notice of any matter or issue on which the decision might turn. The second is that the person then have a reasonable opportunity to say by way of evidence or submissions whatever he or she wants to say on that matter or issue. In our submission, in that root principle lays the Alphaone rule and the Alphaone exception.
The Alphaone rule is that it is no part of a fair hearing that the decision‑maker expose his or her substantive reasoning process in advance of the substantive decision. The exception is where that process itself raises some new matter or new issue of which no notice has been given. Although one finds in Alphaone and a number of other cases questions as to whether the reasons of the decision‑maker disclose something that was not obvious or not a natural response to the material that was adduced, in our submission, what is really being asked is are those reasons confined to matters or issues which were fairly within the scope of the notice that had been given to the person affected or do they address in substance some new issue of which no notice had been given.
That way of analysing the cases and the principle was helpfully distilled by Justice Merkel in the Pilbara Land Council Case 103 FCR 539 in a very short passage at page 557. This is at the end of a lengthy and useful exposition of the law that begins at page 554. Can I draw your Honours’ attention though to just two or three sentences towards the end of that discussion? At page 557 at about point 3 his Honour says:
The overriding principle is that the decision‑maker must bring to the applicant’s attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it.
There is a reference, amongst other cases, to Broussard. Then at about point 8 of the page it is said:
In some situations where the adverse conclusion is not an obviously natural response or evaluation of the material the party affected by the decision may be entitled to respond to the adverse conclusions.
There are references, amongst other things, to Somaghi and Alphaone.
However, the rationale for that opportunity must be that the response raised a new matter in respect of which, in fairness, the party ought to be afforded an opportunity to respond or deal with.
There is one other Federal Court authority that I wanted to refer to again in a ‑ ‑ ‑
GLEESON CJ: Just before you pass from that, I suppose there is a question of the level of abstraction at which you describe or identify the matter.
MR GAGELER: I will come to that. Your Honour is absolutely right and there is the question of level of abstraction and there is also a question of the nature of the proceeding because, of course, the general rule must be slotted into the particular statutory scheme. Your Honour is absolutely right.
The other statement of principle is in a case called Telstra Corporation Ltd v Kendall. I do not want to take your Honours to the report of that case but to an extract of the relevant part of it in a migration case. The migration case is unreported. It is MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94. Paragraphs 21 through to 24 deal with an argument that the applicant had been denied that natural justice because the Tribunal had decided the case on the basis that there was an inconsistency between what he had said in his evidence and what appeared in the country information which had been provided to him. That argument was rejected. I do not want to take your Honours to the reasoning in this case but, rather, to the reference to Telstra Corporation Ltd v Kendall which is in paragraph 23. What is there usefully said is that:
the rules of procedural fairness do not require that the decision‑maker communicate specifically the conclusions which the decision‑maker may seek to draw from [evidence or material known to an applicant]. If those conclusions were so unreasonable that no reasonable decision‑maker should draw them, the decision would be subject to attack for that reason, rather than for the reason that the applicant was not afforded procedural fairness.
When one looks at the Australian cases, Alphaone itself, the line of authority referred to in Alphaone, where a failure to disclose some element of the reasoning process has been found to result in a denial of procedural fairness, in every case properly analysed, in our submission, it has been because what has motivated the decision-maker was some new matter or some new issue of which no notice had been given.
To take the two cases that your Honours were referred to this morning in Broussard 21 FCR 472, the early decision of Justice Gummow, what you had was a previously undisclosed requirement for corroboration. I will not ask your Honours to go back to it, but you really need to look at the decision‑maker’s reasons at page 478 where an absolutely bizarre distinction was drawn between a claim and evidence, and what was put forward by the applicant in the case was treated as a claim and not evidence for undisclosed reasons.
If you look at Somaghi 31 FCR 100, the other case to which your Honours were taken today, that was a case in which a positive inference of fact was drawn from the material before the decision‑maker, an inference that had never been raised with the applicant.
Can I say something before moving to a particular statutory scheme about what one gets from the academic writing. Your Honours have been provided, I think by our learned friends, with an article upon which they rely extensively in their written submissions. It is an article by Professor Smillie of some age, [1975] Public Law 64. He very usefully at page 69 of that article set out in a paragraph or so the law on the question of when a tribunal is entitled to use its expert knowledge without notice to a party appearing before it.
As correctly distilled by Professor Smillie, what the cases have said, consistently with our fundamental proposition, is that if the particular knowledge of the expert is used to supplement or substitute the material before the tribunal, then notice must be given; reason, what you have is some new matter or new issue being raised. If, on the other hand, all that is being done is that the expert knowledge of the tribunal is being used to evaluate or assess, then no notice is required. That is the way in which the cases have gone on both sides of the Atlantic, as he notes in the last sentence on that page, and that is consistent with underlying principle.
The other academic writing that we want to draw your Honours’ attention to was that which was endorsed by President Mason in the decision in the New South Wales Court of Appeal, Minister for Local Government v South Sydney Council 55 NSWLR 381. At page 437 he adopted analysis contained in an article by M.C. Harris [1996] Public Law 508, and your Honours will see – and I will not read – the passage that is there extracted at about point 6 and continues over the next page.
Your Honours have been provided, I think, with a copy of that article. Again, I do not propose to go through the detail of it. It contains an analysis that is fundamentally the way in which I have sought to put it. The particular passage that was quoted by Justice Mason is that which appears at page 522. If I could draw your Honour’s attention in addition to a passage that appears at page 525, what was there said, in the middle of the page 525, is that:
There is a question whether procedural fairness demands that an investigative tribunal not proceed to a conclusion until it has first disclosed to the subject what findings and/or recommendations it is minded to make and invited comments thereon. There is authority for saying that “the application of notions of fairness…does not require such an extreme step”. Indeed, it can be strongly argued that the only basis for intervention in the conclusory area of a tribunal’s investigative work is where the tribunal, in the course of its deliberations, makes adverse findings of which the subject had had no real notice.
Again, your Honours, we treat that and the analysis leading to that statement as supportive of the basic proposition. Can I then move to the statutory context which is of some significance? In the statutory context, one has to start with section 65 which governs directly the initial decision of the Minister or delegate and which governs indirectly through section 414 and 415 the decision of the Tribunal.
GLEESON CJ: Which reprint of the Act should we be using?
MR GAGELER: You can use either 8 or 9. I am using 8 and I believe my learned friend used 8 as well. Section 65 is invoked in the case of the initial decision by the making of a valid application under section 46 which is an application for a particular class of visa which invokes the duty that one finds in section 47. Section 65 is then a provision which has, one might say, a binary outcome. The visa is to be granted if the decision‑maker is satisfied relevantly that the criterion prescribed relevantly by section 36 of the Act is met and the decision-maker is to refuse to grant the visa if not so satisfied. Now, what does satisfaction require in this or any other statutory context?
Interestingly, although it is not ordinarily cited in this context, that is the question that Briginshaw v Briginshaw addressed. Briginshaw v Briginshaw was concerned with the nature of the satisfaction that was required for the making of orders under the Marriage Act. Very usefully, in Briginshaw v Briginshaw 60 CLR 336 at page 361 - we have given your Honours just the one page - what Justice Dixon said at the bottom of page 361 in the context of expounding the meaning of “satisfaction” is that what is required is not a balancing of probabilities. What is required by satisfaction is “actual persuasion” or a belief in the reality of what is put. That, at the end of the day, is the statutory function of the decision-maker, whether the Minister or the delegate at first instance or the Tribunal on review, to determine whether or not on the material the decision-maker is actually persuaded.
Now, the decision-maker in the statutory context who is to be actually persuaded or not is either the Minister or the delegate, simply a person appointed under section 496 at first instance, or the Tribunal on review, the members of which are appointed under section 396 and the members of which are not required to have any particular expertise or understanding of the subject matter. All of them can be assumed to bring to bear their own common sense and their own practical experiences, limited though they may be. All of them consistently with ‑ ‑ ‑
KIRBY J: And cultural assumptions.
MR GAGELER: And cultural assumptions; they bring that baggage as would a jury. All of them can be expected, however, this is consistently with Hetton Bellbird Collieries and any number of cases, to act in making the decision on the material before them and within the bounds of reasonableness. But none of them, and again within the bounds of reasonableness, need to have some positive evidence or to make some positive finding or positive assumption of fact in order simply not to be persuaded by the material before them. If authority for that proposition is necessary, one can find it, for example, in the very short judgement of Chief Justice Jordan in McPhee v S Bennett Ltd 52 WN (NSW) 8 at 9.
If one then goes to the particular statutory context of a proceeding before the Tribunal, it is invoked significantly only after there has been an initial decision under section 65 to refuse to grant a protection visa. It is invoked again by an application under section 412 and it gives rise to the duty of review under section 414. The Tribunal then has a number of powers of investigation. Those are the powers that one sees in sections 424, 426 and 427. Those are powers of investigation. There is no duty to inquire. There is no duty to investigate so held by this Court in SGLB 207 ALR 12, in particular at paragraph 43 in the judgment of Justices Gummow and Hayne. Your Honour the Chief Justice agreed at paragraph 1, no duty to inquire, no duty to investigate.
What the Tribunal does have under section 425 is a duty to conduct a hearing which is triggered significantly by the factor in section 425(2)(a), that is, that the Tribunal cannot consider that it should decide the review in the applicant’s favour on the basis of the material before it. You only get to hearing if the Tribunal is not persuaded by the material that has already been adduced on the applicant’s behalf. The hearing that is then to be conducted is sometimes referred to in the cases as inquisitorial. That is an apt enough description if one is seeking to distinguish between an adversarial system and something else, but it is an inapt description if by that one were to take it as meaning that there is some sort of duty to inquire. There is no such duty generally and there is no such duty in the context of a hearing, given the terms of section 425(1).
What the Tribunal must do is invite the applicant before the Tribunal to give evidence and present arguments. What it is is the opportunity for the applicant to turn up and present the applicant’s case, not a forum within which the Tribunal is to discharge some duty to find out what the applicant’s case really is, or to resolve its own concerns about the case that is being put.
It is a significant point that we have brought out in our written submissions that the hearing that is required by section 425 when triggered by section 425(2)(a) need not even be conducted by the Tribunal itself. There is provision in section 428 for the Tribunal to permit an authorised person to conduct the hearing at subsections (1) through to (3). The authorised person then, under subsection (4), transmits simply the record of the evidence to the Tribunal and then, under subsection (5), the record is taken for the purposes of section 425, and again the language is not insignificant, to have given the applicant an opportunity to appear before it and to give evidence.
The statutory scheme, when those provisions are put together, is one which, in our submission, can only be read as one which allows an applicant to make out a case that the applicant meets the protection visa criterion and the Tribunal either to be persuaded, “satisfied” being the statutory language, or not as the case may be that the case is made out.
It is within that context that I think I can say with some confidence it has been universally recognised in the Federal Court that there is nothing about giving an applicant a fair opportunity to present his or her case that requires a tribunal to give the applicant some sort of quote on how he or she is going or some commentary on the prospects, either during the course of the hearing or after the hearing. If the Tribunal receive some new information or thinks up some new issue for itself or draws some positive inference that has never been raised then things are different, but simply not to accept the story that is put forward is not a denial of procedural fairness. Your Honours, I have about 10 or 12 minutes to go.
GLEESON CJ: We will adjourn until 2.15 pm then, Mr Gageler.
AT 12.44 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.18 PM:
GLEESON CJ: Yes, Mr Gageler.
MR GAGELER: Your Honours, I was dealing with the second of my topics and I was about to take your Honours to a couple of cases, just one in the Federal Court and then a couple in the High Court. The one in the Federal Court is WABY v Refugee Review Tribunal unreported [2005] FCA 209. I draw your Honours’ attention to this as an example of the way in which these cases have generally been dealt with in the Federal Court. There is also an exposition of the law by Justice French, who was one of the authors of Alphaone. Relevantly at paragraph 65 and following his Honour deals with the claim of the failure of procedural fairness and he records in paragraph 66 that:
In relation to the various findings against the applicant’s credibility it is said that the Tribunal did not raise with, or put to, the applicant certain matters during the course of the hearing or otherwise.
Then they are particularised. Your Honours will see the word “unconvincing” occurring particularly in 5.6, 5.8 and later. Then it is said in paragraph 67:
In respect of other findings against the applicant’s credibility it was said that the Tribunal did not put to the applicant the gravamen of its concerns.
Then there is some particularisation of that. Then his Honour dealt with the matter in paragraph 69, and what he said was this:
In my opinion, the Tribunal was not required to pre‑test its conclusions on any of these matters with the applicant before finalising its reasons. Each were conclusions about and characterisations of the evidence put to the Tribunal by the applicant. They were conclusions and characterisations which the Tribunal was entitled to reach. The Tribunal questioned the applicant in a somewhat sceptical fashion on a number of matters in the course of the hearing. It gave the applicant the opportunity to make further written submissions to further bolster his case after the conclusion of the hearing. Even had it not done so, there would have been no failure of procedural fairness in this case. It is open to the Tribunal to reject or not be persuaded by an applicant’s evidence without specifically putting to the applicant that the evidence has not convinced or persuaded it. This is true of all the matters in respect of which complaint is now made.
In this Court I want to take your Honours back briefly to S154 201 ALR 437. Your Honours were taken to parts of the judgment that dealt in terms with an argument that was based on Alphaone. In the joint judgment of Justices Gummow and Heydon, however, at page 449 and following, there is a subsidiary point that is discussed that is of some present moment and that is the application of the rule in Browne v Dunn. As formulated in paragraph [55], the rule in Browne v Dunn is said to be:
In essence, and subject to numerous qualifications and exceptions, that rule requires the cross-examiner of a witness in adversarial litigation to put to that witness the nature of the case on which the cross-examiner’s client proposes to rely in contradiction of that witness.
That was said to have no application to proceedings before the Tribunal which were, of course, not adversarial. In the course of discussing the non‑application of that rule which is not very different from the rule that my learned friend really needs to formulate to say what should happen to discharge the procedural fairness duty that he says exists, one sees at line 20 at page 450, it being said with reference to earlier authority in this Court that:
Here, on the other hand, it was for the prosecutrix –
the applicant before the Tribunal –
to advance whatever evidence or argument she wished to advance, and for the tribunal to decide whether her claim had been made out; it was not part of the function of the tribunal to seek to damage the credibility of the prosecutrix’s story in the manner a cross‑examiner might seek to damage the credibility of a witness being cross‑examined in adversarial litigation.
It would have been erroneous for the tribunal to have represented at the hearing that a particular piece of evidence or argument had been accepted and then to have rejected it in the decision in circumstances where, but for the representation, the prosecutrix could have mended her hand. It would also have been erroneous for the tribunal to have relief on a particular conclusion about the material before it which was not open on the material. But it was not erroneous for the tribunal not to have pressed the prosecutrix more than it did about the rape claim.
Then at the top of the next page, 451, the last sentence before the heading “Orders”:
The tribunal conducting an inquisitorial hearing –
I made the point before that that language needs to be treated with a little caution in the present context –
is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on.
The other reference in this Court is in Muin v Refugee Review Tribunal 190 ALR 601. Your Honours have been provided with just an extract because it is really just one paragraph that I wanted to take your Honours to. It is from the judgment of Justice Hayne in dissent, but no worse for that, at paragraph [265]. Your Honour says something which I think is not inconsistent with anything said by any other member of the Court. What your Honour said in paragraph [265] was:
Procedural fairness required that Mr Muin have a reasonable opportunity to place before the tribunal any submission and any material that he wished to advance in support of his claim. Unlike National Companies and Securities Commission v News Corp Ltd and Mahon v Air New Zealand there was no question of allowing a person an opportunity to meet some adverse finding might later be published.
As I have said we are here concerned with a binary outcome.
In such a case an investigating body may be obliged to provide an opportunity for rebuttal because the issue emerges with sufficient definition only at the stage where the body forms a tentative view that the adverse finding may be made. But that is not this case. As has already been pointed out, the issue of the willingness and ability of his country of citizenship to afford Mr Muin protection from persecution on Convention grounds was central to his claim. The tribunal was not obliged to tell Mr Muin that it was minded to reach a view about that question, which was contrary to the view he sought to have it form, and then ask him whether he wished to contradict that view. That he had to make out his claim about this matter was apparent from the outset of the tribunal’s review. Indeed, it was apparent from the moment he made his claim to a protection visa. This was not some issue that emerged only in the course of the tribunal’s proceedings.
I think I may have misled your Honours. There is one other reference in a judgment of this Court that I wanted to take you to and that is in the judgment of Justice McHugh sitting alone in the case called Durairajasingham 168 ALR 407. Your Honours have an extract of that.
His Honour was dealing with, amongst many other arguments, an argument that the Tribunal had breached the duty to give reasons under section 430(1)(c) of the Act by failing to give reasons for rejecting evidence and his Honour said that the Tribunal was under no duty under section 430 to set out the reasons why it did not accept evidence that was put forward. He said that at paragraph 64, 65, 66 and 67. Your Honours might note – and I will not read it – that the rejection of the evidence in part by the Tribunal had been because the Tribunal had found it utterly implausible, was the language that was used. There was no statutory duty to give reasons for finding evidence to be utterly implausible.
HEYDON J: It does not seem to be in point in this case.
MR GAGELER: Only for this reason – and this is the only reason that I draw your Honours’ attention to it – when one goes to the decision of the United States Court of Appeals in Ming Shi Xue that your Honours were taken to, there are a number of elements of the case law in the United States which were relied upon to create what was openly acknowledged to be new doctrine in that case. One of the elements was the duty of an immigration judge to expressly consider and evaluate an explanation given in the asylum seeker’s evidence. That, in our submission, is either the statutory or judge‑made scheme – and it is not entirely clear – which is different from our statutory scheme. That emerges, your Honours – if you have Ming Shi Xue 439 F 3d 111 at 125. What your Honours I think have been taken to ‑ ‑ ‑
GLEESON CJ: Whatever the basis or foundation of it, this obligation of an immigration judge in the United States to “complete the record” seems different from ‑ ‑ ‑
MR GAGELER: That is right, that is one aspect.
HAYNE J: Well, is it in this respect? It is ultimately rooted, as far as I can find, in provision 8 CFR section 208.9(b) which is based on Anker’s book Law of Asylum in the United States. That provides that:
The asylum officer –
the first port of call –
shall conduct the interview in a nonadversarial manner and, except at the request of the applicant, separate and apart from the general public. The purpose of the interview shall be to elicit all relevant and useful information bearing on the applicant’s eligibility for asylum.
On its face, apparently very different. What sparks my question though is that Anker in her book refers not only to that particular statutory provision but to the UNHCR Handbook. UNHCR Handbook section 196 makes this statement:
Thus, while the burden of proof in principle rests on the applicant –
so far so good –
the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.
That is earlier identified as the person charged with determining status.
Indeed, in some cases it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.
Now, we are dealing with a secondary or even tertiary level document.
MR GAGELER: Yes.
HAYNE J: I understand that when we are dealing with UNHCR Handbook.
MR GAGELER: I have not made the connection between the two, your Honour. Your Honour may be right in making that connection. I am not sure.
HAYNE J: But UNHCR Handbook says that the examiner has to sometimes search out the facts. I think one of the documents to which we were taken earlier referred to the fact that the burden of proof is on the applicant but the benefit of the doubt has to be given to the applicant. I think I remember that correctly. The benefit of the doubt notion, where does that come from? The handbook.
MR GAGELER: Well, it may come from the handbook, but it also, your Honour – it may be reflected in the handbook, may I say it that way, but it also comes from the nature of the decision that is being made.
HAYNE J: Just so, and if it comes from the nature of the decision, that is, if benefit of the doubt comes from the nature of the decision, considerations of that kind may also be thought, rightly or wrongly, to inform the nature of the inquiry which the initial decision‑maker is to make.
MR GAGELER: To an extent I agree with your Honour.
HAYNE J: Including sometimes searching out, examining, testing?
MR GAGELER: No, I would not go that far. If your Honour goes back to Guo’s Case, for example, and the question, “What if I am wrong?” “What if I am wrong?” comes in part from the nature of the inquiry that one needs to engage upon. So in determining the state of satisfaction, again using the statutory language, one has to be mindful of the question, “What if I am wrong?”
HAYNE J: Yes.
MR GAGELER: There is just no doubt about that. It is conceivable that in the implementation of the Convention obligations a scheme, as in the United States, will be conceived that involves an element of a positive duty of investigation on the part of the body finally charged with determining refugee status.
HAYNE J: This is only on the asylum officer, the first port of call. It goes from the asylum officer to the immigration judge, from the immigration judge to the board, and from the board on review to the Federal Court; is that right?
MR GAGELER: Yes.
HAYNE J: The standard to be applied by the Federal Court is specified as being, amongst other things, that the administrative findings of fact, that is, the findings of the board, are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. So it is an irrationality standard?
MR GAGELER: Yes, but there is a whole body - United States administrative law is so different from our own that for me to assent to it being an irrationality standard could ‑ ‑ ‑
HAYNE J: May carry baggage.
MR GAGELER: Carry baggage that it really does not have there, your Honour.
HAYNE J: I understand that. Well, let us stick with the words ‑ ‑ ‑
MR GAGELER: For example, that still means that the court has a hard look at the facts – they have a hard look at the facts and their deferential as to the law, for example, which is just ‑ ‑ ‑
HAYNE J: And deferential as to the facts which we see throughout Judge Calabresi’s opinion.
MR GAGELER: Could I just say, your Honour, this may be an accident of history; these things always are.
HAYNE J: I would chop it off if I were you too, Mr Gageler.
MR GAGELER: No, your Honour, I want to go there. I want to engage with your Honour, but let me just say this. We have Judge Calabresi’s opinion and it is a significant piece of judicial writing. If we were dealing with this case before February 2006; that is, in January of this year, the law would have been as stated in Majidi, the case that is departed from, and the statement at page 121, left‑hand column, would have been taken to be the decision in the United States. One just really needs to be ‑ ‑ ‑
HAYNE J: I would not debate that with you, but you need to look at 329 and 428 F.3d as well, but there we are, yes.
MR GAGELER: One just has to be careful of taking a piece of very new law in the United States and accepting it as stating the way things must be, given the international background, your Honour.
HAYNE J: I understand that, but what I want to get to is that the principle developed is one that is developed in the United States, maybe rightly according to US law, maybe wrongly according to United States law; that is not for us to say. But it is a standard that is developed of judicial review of administrative decision‑making concerning findings of credibility or plausibility. What I invite you to do is to say whatever has to be said about whether those words, “credibility” or “implausibility”, may not be used to mask chains of reasoning that depend in important respects upon unarticulated facts which the applicant should have an opportunity to challenge.
MR GAGELER: Your Honour is providing me with procedural fairness and in response to that what I say is, yes, the words “credibility” and “implausibility” have an element of ambiguity. What they mean certainly is a decision‑maker saying, “I just don’t buy it. I don’t believe it”. Now, lying behind the “I don’t believe it” or, putting it another way and I think adapting the dictionary definition, “it just does not have a ring of truth to me”; that is what is being said. Lying behind “It does not have a ring of truth to me” may be in a particular case, fully accepted, unarticulated factual premises, absolutely, I must accept that. Is that every case? No.
HAYNE J: But in this case is there an unarticulated factual premise about the nature of a society which is not this and which is a theocratic, revolutionary society?
MR GAGELER: Your Honour, the answer is no. If by implausibility or credibility the Tribunal was talking simply about probability, the answer would be yes. If, on the other hand, the Tribunal is properly, as we would have it, talking about its ability to accept as truthful the story that was being told, the answer is no. In my respectful submission, fairly construed, we are in the latter category.
I have thought about these things and had a look at Sir Richard Eggleston’s book on Evidence, Proof and Probability and there is a very interesting discussion at pages 165 to 166, your Honour, about the question of implausibility, improbability. What is being pointed out by Sir Richard there by reference to an example is this. The chances of being dealt four aces and a king in a game of cards are exactly the same as the chances of being dealt any other five cards. But if I am sitting playing poker with your Honour and your Honour intimates to me that your Honour has four aces and a king, I may well regard that as implausible. I am regarding it as implausible not by reference to the inherent probability because the inherent probability of your Honour having that hand is really no different from the inherent probability of your Honour having some other hand. What I am assessing is what is at stake, what is my assessment of your motive for saying what you are saying and a variety of other factors; it is not simply an element of probability.
Here, the Tribunal is faced with a story. Here is a story about a man who leaves his ship at the port of Bandar Abbas on the Persian Gulf. He flies to his home town, which is in some places called the home city of Bandar‑e Anzali on the Caspian Sea. He says he has a private conversation with four of his friends in a coffee shop. He says he makes his way back to the ship and when he is at sea he finds that the captain is aware of the substance of the conversation that he had with his friends.
Is that credible? Perhaps if you want to persuade me a great deal about Iranian society, I could accept it is credible. Here in Australia bringing necessarily the cultural baggage that I have with all the best will in attempting to arrive at the truth, I may say simply, “I’m sorry, I just don’t buy it”. I am not there projecting any cultural standard, I am recognising that I have my own limitations, but I am not measuring it against some objective view of some society. I am trying to come to grips with the story as told to me. I am saying I just find it hard to believe. That is all it has done.
HEYDON J: While you are on that passage, “personal conversation while the Applicant is in port for ten days”, that should read, should it, “while the Applicant was in his home town for ten days”? I am looking at page 168, line 24. This is the question of what the Tribunal found implausible.
MR GAGELER: Yes. I think what the applicant says happened was that the ship went into port and when the ship was at port he flew to his home town.
CALLINAN J: Mr Gageler, it was not the conversation with a crew member. Is that not another error in that ‑ ‑ ‑
MR GAGELER: I am sorry, your Honour?
CALLINAN J: Was not the conversation about Christianity with three or four other people, one of whom was a crew member?
MR GAGELER: No.
CALLINAN J: I am wrong about that, am I?
MR GAGELER: No, that is wrong. Three or four of his friends in a coffee shop in his home town on the Caspian Sea. Your Honours can – there is no evidence about the size of this so-called small town, but anyone can look it up in an atlas.
CALLINAN J: You are quite sure about that though? None of those three or four was a ‑ ‑ ‑
MR GAGELER: Yes.
HEYDON J: Page 85, line 21 says:
One of the other crew members –
of the captain’s ship –
had informed him –
the captain –
of the ostracism that I had experienced there.
“In my home town”.
MR GAGELER: That is right.
HEYDON J: Taking that into account it does not look quite so implausible, does it?
MR GAGELER: Your Honour, if you are asking me would it have been possible for the story to be accepted by someone, I would have to say yes. Just taking the story as a story, is it capable of acceptance? Yes. That does not mean that it is acceptable to a person who is charged with being satisfied or not.
HEYDON J: But if Mr Williams’ test is sound and if his application of it is sound, the second proposition might be more controversial. If the Tribunal had said, “Look, it’s simply not plausible that some conversation you had in a city in Iran is going to become public knowledge such that a crew member from the same town had knowledge of it”, could not the appellant then have said, “Look, in my statement I told you this is the way it could have happened”?
MR GAGELER: He has already said that, and I will take your Honours to it. He said it in his statement and he was also questioned about this and he said it during the course of the hearing. Yes, he said it and ultimately it just was not accepted. Perhaps I should take your Honours – really the particular case, the facts were where I wanted to end up. I think I have said what I wanted to say about the US Court of Appeals case.
Your Honours, the proceedings before the Tribunal have to be understood in this context. The applicant had been thoroughly disbelieved by the delegate, and your Honours see the delegate’s reasons which ‑ ‑ ‑
CALLINAN J: But one of those reasons was that he was not baptised. Is that not right?
MR GAGELER: Yes, that is one of the reasons.
CALLINAN J: Well, that seemed to me to be really totally unreasonable. He was doing these things in secret and he had only been in Australia for a very short period.
MR GAGELER: Well, your Honour, all I am trying to get out of this is that the applicant had been thoroughly disbelieved and ‑ ‑ ‑
CALLINAN J: But he was disbelieved on a basis, insofar as the delegate is concerned, that is really – one of the bases is utterly untenable. It is a criticism of him for not being baptised.
MR GAGELER: Your Honour is looking at the last dot point on page 96.
CALLINAN J: Yes.
MR GAGELER: Taken alone, I would agree with your Honour, but it is not taken alone. It is cumulative ‑ ‑ ‑
CALLINAN J: Well, it is important enough for the delegate to rely upon it, Mr Gageler.
MR GAGELER: May I answer your Honour more fully? It is not taken alone and all I am getting out of this is that this complete disbelief in his story, including the point that your Honour may well regard as untenable, was part of the background to the applicant making the application to the Tribunal. He then lodges the application that you see at pages 116 and following. He says at page 118 that he disagrees with that decision and he will provide further submissions in support of his claims.
Then what does the Tribunal have before it setting out its story? It has the statutory declaration that your Honours see at pages 79 through to 87. Your Honour Justice Heydon has drawn my attention to page 85, line 20, within that first statutory declaration. There is then the second statutory declaration at pages 133 through to 135 and that addresses in particular at page 134, lines 15 to 20, the seeking of medical assistance with another crew member. So that is the story. It is pretty well set out in those two documents in a pretty comprehensive form.
HAYNE J: Just apropos of the delegate’s disbelief, is the appellant right at 133, line 52, when he says that the delegate refused him without interviewing him?
MR GAGELER: I think he was offered an interview and he did not take it.
HAYNE J: So he is disbelieved on the papers?
MR GAGELER: Yes, he was offered an interview and did not take it.
HAYNE J: So what are we to make of that disbelief, do you say, Mr Gageler? You were laying some emphasis on the fact that this is a man who has been disbelieved throughout. What do we make of that disbelief on the papers?
MR GAGELER: Your Honour, the question is ultimately, “What notice did he have of the nature of the issues before the Tribunal?” Step one was simply to show that he had made certain claims to the delegate and he had been thoroughly disbelieved on those claims. What he was seeking before the Tribunal was review of the delegate’s decision. That is as far as I wanted to take it. To get to the hearing within the terms of a statute, as I mentioned before, the Tribunal reaches the position where it is unable to decide in the applicant’s favour simply on the papers. That was this case and the applicant was so informed in the letter inviting him to the hearing – page 127 at line 25. At the beginning of the hearing the applicant was again told – page 8, lines 30 to 40 – that on the written material the Tribunal was not able to be satisfied that he met the criterion.
Now, in those circumstances, in our submission, that was sufficient to put the applicant clearly on notice what is implicit, in any event, in the structure of the Act, and that is that his story might not be accepted and it was up to him to persuade the Tribunal that the story in all of its elements should be accepted and – we do not shy away from this position – it would have been open to the Tribunal and a fulfilment of its duty under the Act simply to say, “I don’t believe your story on the papers. Tell me whatever else you want to say in support of the story”.
It was certainly, in our submission, not necessary for the Tribunal to go any further in questioning the applicant, but the Tribunal did and what the Tribunal engaged in was questioning and, on the face of it, a pretty sceptical questioning, particularly at pages 20 through to 21 – your Honours have looked at this before – about the occurrences in the home town. It was in the course of that questioning that there is the first reference in the material to the Hezbollah – wrongly translated as “his mullah” – at page 21.
There is then pretty sceptical questioning, one would have to say, from there on, page 21, 22 and 23, about how the captain came to know of his interest in Christianity. That was when he volunteered, at the bottom of page 22, that one of the guys on the ship was from his home town.
HEYDON J: You say “volunteer”. Is it not there in the first statutory declaration?
MR GAGELER: Page 85, line 20 he had said:
One of the other crew members had informed [the captain] of the ostracism –
Here he made the connection that one of the guys on the ship was from his own town. So the story is coming out. Then one goes to page 26 at about line 30:
Are there some things you’d like to tell me about that I haven’t asked you questions about?
Then towards the end of that page, apparently in response, one sees about line 55 about the threat of the captain to report him to “the office of kharoset”, which was one of the police forces in Iran, Iranian security officers. One then gets to the end of the hearing. Page 35 – there was some mention of this in the course of my learned friend’s submission – page 35 about line 35, this is in questioning one of the witnesses called to demonstrate the genuineness of the applicant’s faith and that was very much in issue. At page 40, line 51 at the end of the hearing the Tribunal member is saying, “Look, I will have to go away and look carefully at all of this”, and at line 20 on the next page, “If you want to say anything more, you are welcome to do so.”
Now, in our submission, it would have been sufficient for the Tribunal simply to have invited the applicant to say whatever more was to be said. The Tribunal went further and aired the substance of the concerns about the story. Now, when one goes to the reasons – and, critically, it is only the passage that appears at pages 167, right at the bottom, over to 168 – what one has is not new information and not, in our respectful submission, some positive inference that is being drawn from the material that is presented. What the Tribunal is doing is taking the applicant’s story and, without making any assumptions about the nature of Iranian society or the propensities of Iranian sea captains, necessarily drawing on the Tribunal’s own common sense and necessarily limited life experience, and having seen the applicant give evidence, the Tribunal is saying, “This story just doesn’t ring true. Your story has elements A, B, C and D. I am afraid I just cannot bring myself to believe elements A, B and C.”
I think that is really all that the Tribunal is doing. When it uses the language of lacking credibility, which it uses at line 5, page 168, when it uses the language of implausibility, all it is saying is, “I, as a tribunal of fact, just cannot bring myself to believe this story”. In our respectful submission, ultimately that is the Tribunal simply performing the statutory function that it is necessarily required to perform, that is, to either be persuaded or not.
Our learned friend’s case, at least as presented orally, really turns on reading what the Tribunal is there doing at page 168 as carrying with it some specific factual finding or assumption to the contrary of the case that was being presented by the applicant. But you do not need to do that. That is not what the Tribunal is saying it is doing. If you were going to say, “I am sorry, I just do not believe your story X”, you do not have to say, “It is because I infer that the truth is Y”. You do not have to do that.
GLEESON CJ: What is the significance of the fact that the Tribunal did not just say, “I don’t buy that”, but said, “I don’t buy that for the following reasons”? There are many beliefs that many people have that many other people think are implausible, including some beliefs about some very important matters.
MR GAGELER: Yes, of course.
GLEESON CJ: But if you go beyond saying, “I don’t believe that”, and say, “I don’t believe that because one, two and three”, what is the consequence of that in terms of fairness?
MR GAGELER: Your Honour, if it is, “I don’t believe that because of one, two and three positive findings or assumptions which have never been put to the applicant”, then there is a breach of procedural fairness. If it is, “I don’t believe that because it has the following elements that I just cannot bring myself to believe, one two and three”, then there is no breach of procedural fairness.
HAYNE J: Can you restate that distinction? I did not grasp it.
MR GAGELER: Yes, of course. Here, to make it abstract, the Tribunal is saying, “Your story has element A, element B and element C. I do not believe your story because I find that I cannot bring myself to accept the truth of element A, I cannot bring myself to accept the truth of element B and I cannot bring myself to accept the truth of element C.” That is the “because” here. It would be different if the Tribunal was saying, “I do not believe your story because I take the view that D represents the more likely course of events in Iranian society”. That is not the sort of reasoning that the Tribunal has adopted here.
I fully accept, your Honours, that if the Tribunal had expressly or implicitly made some particular finding of fact or assumed some particular fact to discredit the story, then that particular finding of fact raises an issue that ought to have been put to the applicant.
GLEESON CJ: That involves a problem about the generality or the level of abstraction at which you identify a matter when you are saying, “Is the applicant on notice that there is a matter that is in question”?
MR GAGELER: Not really in this case, your Honour. Yes, there is that question, but ‑ ‑ ‑
GLEESON CJ: This applicant, I would have thought, was well and truly on notice that it was in question that the captain had threatened to hand him over to the authorities in Iran.
MR GAGELER: Yes.
GLEESON CJ: But do you have to ask whether this applicant was on notice that it was in question whether a ship’s captain would be likely to behave the way the applicant said this captain behaved?
MR GAGELER: Your Honour, the answer to that is no. The applicant was well and truly on notice that the veracity of his story was in issue. He had to persuade the Tribunal that the story was true. Now, an element of the story was what the captain did.
GLEESON CJ: I would have thought that was the key element of the story. It was the threat made to him by the captain that was the critical element in his apprehended fear.
MR GAGELER: That is right, and really that is where the Tribunal gets to with these points that my learned friend has sought to isolate. The Tribunal gets at the bottom of page 168, line 50, to saying:
Considered collectively these points . . . lead the Tribunal to reject the Applicant’s claim –
about the captain of the ship. All the Tribunal has done is just unpack elements of the story and just say, “I really can’t believe that element. I have trouble with this element. I can’t believe that element. You put them together, I really can’t believe your story”.
HAYNE J: And if the Tribunal had said, “I do not accept that a captain could have found out about this man’s interest in Christianity because the Iranian security system is not as efficient as is asserted”?
MR GAGELER: Well, there is no suggestion in the evidence, by virtue of the Iranian security system, that the captain found out, but if that were the assertion ‑ ‑ ‑
HAYNE J: “I am not satisfied that people in small towns in Iran gossip about religious persuasion”?
MR GAGELER: That would be a very odd finding, but if ‑ ‑ ‑
HAYNE J: Is it not implicit in what is found?
MR GAGELER: No, not at all. This is like docking in Melbourne - and your Honours will say this brings all sorts of cultural baggage – for 10 days, going home to Wagga, having a conversation in a coffee shop in Wagga with four friends, going back to Melbourne, getting on the ship, and finding out two weeks later that the captain knows about your conversation in Wagga with four friends.
KIRBY J: I do not think Melbourne and Wagga Wagga are quite the same as Iran.
MR GAGELER: No, your Honour.
KIRBY J: I do not think the concern and danger of knowledge of religion in Melbourne and Wagga Wagga is anything like the same as Iran, anything like it.
MR GAGELER: Is it conceivable that it could occur? Yes, it is conceivable. But really ultimately the question is, “Do I, as a tribunal of fact, having read your story, listened to your story, and knowing what is at stake in you telling the story, have a conviction that I can accept that story?” and the answer was no.
KIRBY J: I think this is the sixth time you have said that. It is not like you to repeat things, Mr Gageler.
MR GAGELER: I am so sorry, your Honour. I am saying the same thing in answer to different ones of your Honours and I am sorry. I think I have probably exhausted myself. Unless there is something further I can address, those are my submissions.
GLEESON CJ: Thank you, Mr Gageler. Yes, Mr Williams.
MR WILLIAMS: Your Honours, our learned friends referred to the Smillie article. If I could give the Court a reference without taking your Honours back to the passages within which that reference must be understood, those references are the whole of page 70 of the article and the passage from 78.8 of the article through to 79.
KIRBY J: Was that written just after Mahon’s Case?
MR WILLIAMS: It was in 1975, which is I think before Mahon. Secondly, our friends referred to the judgment of Justice Mason in the South Sydney Council v Minister for Local Government Case 55 NSWLR. The passage at page 438 in that report, in particular the passages from paragraphs 262 to 263, highlight the context of his Honour’s remarks. That is a context involving a polycentric decision, a decision affecting a range of interests, and not one involving an application for a statutory entitlement. That is, of course, a very different context.
Thirdly, our friends referred to the Harris article, in particular at page 525. The Harris article, as is clear from page 511, concerned investigative tribunals, bodies carrying out inquiries and investigations rather than a tribunal of the kind in question here. Our friends referred to Briginshaw. That, in our submission, does not touch on the question of fairness. A tribunal may not need to make findings in order not to be satisfied, but if it does reach specific adverse conclusions, procedural fairness is required.
GLEESON CJ: Now, what do you say about Mr Gageler’s argument - with reference, for example, to Sir Richard Eggleston’s book which says that you are treating what appears on page 168 as a series of findings of fact on the balance of probabilities, a finding that it is more probable than not that gossip in a coffee shop in a town in Iran would not reach the ears of a captain, a finding that it is more probable than not that a captain would not allow somebody to go and visit the doctor if he was under suspicion of apostasy and so forth. Mr Gageler says that is not what was going on here at all. She is not finding facts about those matters. She is simply saying, “I am not convinced that the assertions that I would have to believe in order to accept the applicant’s story are true”.
MR WILLIAMS: We do not take the passages to be referring to findings that something is more probable than not.
GLEESON CJ: Or less probable than not.
MR WILLIAMS: Or less probable than not. I should say, we have not seen the passages referred to from Sir Richard Eggleston’s book so my comments are not made in that context. The passages referred to in their own terms import not merely a question of more probable than not, but something much more than that – a question of gross improbability or unlikelihood.
GLEESON CJ: Whenever somebody says “That sounds like a tall story” or “That is drawing a long bow”, if you unpacked that proposition you might find built into all kinds of assumptions, cultural and other. If you asked a person to justify the proposition that a story is a tall story or to justify the proposition that an assertion is unpersuasive, the person would then have to go about it by a process of factual reasoning, would that not be so?
MR WILLIAMS: Yes. If the finding were expressed by reference to a collected range of matters of a circumstantial evidence kind, for example, there may be a series of probabilities or possibilities or a series of particular findings bundled up in it. But in the present context, the Tribunal has taken the course of setting out the specific matters that it refers to, the specific conclusions upon which it bases its ultimate conclusion. One of them is a conclusion, as we put it, not simply that it does not find it particularly persuasive, but that it is implausible that a casual conversation in port could travel and implausible that the captain might rely on it.
GLEESON CJ: That is what I had in mind. Would it have made any difference to the substance of the Tribunal’s reasoning if the Tribunal had said, “In order to be satisfied about the applicant’s story concerning the captain’s threat, I would have to accept the following things, one, two and three, and I don’t find any of them acceptable”? Would that have been a different process of reasoning?
MR WILLIAMS: That process of reasoning is, in some senses, implicit in what is said. There are a series of specific implausibilities stated: “I don’t accept that information would travel in this way”. We say that upon analysis that imports a specific finding tested against some notional concept of how information might travel.
GLEESON CJ: That seems to be the point of departure between you and Mr Gageler.
MR WILLIAMS: Yes, it is at the centre of the case. The findings are expressed in very specific terms and a finding of implausibility not based upon any inconsistency or question of demeanour, the finding of implausibility stated in the terms in which the two specific findings that we call particular attention to are expressed, is properly to be read as a finding that it is improbable, highly improbable, unlikely, very unlikely. It imports within it a specific factual assumption or finding or conclusion about the conclusion reached, about the matter stated, whether information would travel in that way.
It is not merely a conclusion that the story does not have the ring of truth when it is read in its context, but we accept that that is a question of the reading of the reasons as a whole and it is certainly a point of sharp departure between us and the first respondent.
Your Honours, if I could refer, finally, I think, to the statutory provisions to which our friends referred. Mr Gageler drew particular attention to section 425. Of course section 425(1) does not refer to an invitation to appear at a hearing generally. It is an invitation to:
appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
That is a narrower context. Your Honours, unless there are matters that the Court wishes to raise ‑ ‑ ‑
GLEESON CJ: Thank you, Mr Williams. We will reserve our decision in this matter and the Court will adjourn until 9.30 tomorrow in Sydney and 9.30 tomorrow in Melbourne.
AT 3.16 PM THE MATTER WAS ADJOURNED
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