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High Court of Australia Transcripts |
Sydney No S196 of 2001
In the matter of -
An application for Writs of Certiorari Mandamus, Prohibition and an Injunction against PHILIP RUDDOCK in his capacity as THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA
First Respondent
The REFUGEE REVIEW TRIBUNAL as constituted by SUE ZELINKA
Second Respondent
PETER NYGH in his capacity as the Principal Member of the REFUGEE REVIEW TRIBUNAL
Third Respondent
Ex parte -
PROSECUTOR 1, 2, 3 and 4
Applicants
GLEESON CJ
McHUGH J
GUMMOW
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON THURSDAY, 29 NOVEMBER 2001, AT 10.16 AM
Copyright in the High Court of Australia
MR N.J. WILLIAMS, SC: I appear for the first respondent, your Honours. (instructed by Blake Dawson Waldron)
GLEESON CJ: There is a certificate from the Deputy Registrar that she has been informed by the solicitors for the second and third respondents that the second and third respondents do not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs.
Mr Knoll, I notice that the convention has been adopted by the parties of describing your clients as prosecutors. I am not referring to the anonymity but to the fact that they do not yet have the status of prosecutors - they are applicants - but we might as well continue with the description of them in references to the title to the proceedings, as Prosecutors 1, 2, 3 and 4.
MR KNOLL: If it please the Court.
GLEESON CJ: Yes, Mr Knoll.
MR KNOLL: I read, first, the affidavit of the second prosecutor, dated 17 September 2000 which appears in the application book at pages 189 to 302, and formally tender the application book.
GLEESON CJ: I am sorry, what do you tender?
MR KNOLL: The application book which I understand has been filed with the Court and your Honours would have.
GLEESON CJ: Why would you tender the application book?
MR KNOLL: My friend indicated that was an appropriate formal step.
GLEESON CJ: Why do you not just read the affidavit. Is there any objection to the affidavit, Mr Williams?
MR WILLIAMS: There is, your Honour, but it has been the subject of discussion and certain paragraphs are not to be pressed and others pressed only on a limited basis, and subject to that I have no further objection to the affidavit.
GLEESON CJ: Right. Now, Mr Knoll, why do you not take us through the affidavit and tell us what parts of it - before we read any of it - are not pressed and what parts are pressed on a limited basis. What page is this again?
MR KNOLL: Your Honour will find the affidavit commencing on page 189.
GLEESON CJ: Yes, thank you. Which paragraph do you not read?
MR KNOLL: Your Honour, there is firstly an objection to paragraph 11 and that is not pressed.
GLEESON CJ: No read. Yes.
MR KNOLL: There was an objection, your Honour, to paragraph 15, which I understand is withdrawn. It is withdrawn
GLEESON CJ: Yes.
MR KNOLL: In relation to paragraph 16, the words on the second line from "and said to us words" to the end are not pressed.
GLEESON CJ: Can you say that again, please?
MR KNOLL: Yes, your Honour. On the second line, after the word "medication" appear the words "and said to us words to the following effect"; from those words to the end of the paragraph it is not pressed.
GLEESON CJ: Thank you. So it ends at "medication"?
MR KNOLL: That is correct, your Honour.
GLEESON CJ: Yes.
MR KNOLL: Paragraph 17 was objected to and I understand that objection is withdrawn. Paragraphs 19 and 21 are not pressed.
MR WILLIAMS: Paragraph 19 to 21.
MR KNOLL: Paragraph 20 is not pressed but I should indicate, as I have to my friend, that I will be referring to page 200 of the appeal book which deals with the same subject matter.
GLEESON CJ: Thank you.
MR KNOLL: In relation to paragraph 24, only the first sentence is pressed. In relation to paragraph 27, it is not pressed and I should indicate to the Court, as I have to my friend, that I will be referring to pages 67 and 78 in the application book. Paragraphs 28 to and including 32 are not pressed. Paragraph 33, along with annexure D, which is referred to in it, are pressed on the issue of discretion only, for the limited purpose of demonstrating the prosecutors' efforts to recover their mental health and prepare for and attend a hearing on any remitter, and I will take the Court in due course to page 201 of the application book. The respondent objects as to relevance but accepts that the Court should receive the document and the paragraph subject to relevance.
GLEESON CJ: Thank you.
MR KNOLL: Paragraphs 34 through to 40 are not pressed. Paragraph 47 is not pressed. In relation to paragraph 49, the last sentence is not pressed but the balance is. In relation to paragraph 52, the words that are pressed commence with "we were very depressed". So, the sentence would read, "We did not attend the hearing on 13 February 2001 because we were very depressed".
Your Honours, in relation to paragraph 55, on the first line after the date 14 March 2001, the words "having not heard from the Second Respondent" are not pressed and I have agreed with my friend to take the Court to the document that appears at pages 114 to 116 - - -
McHUGH J: What is the paragraph again, Mr Knoll?
MR KNOLL: I am sorry, your Honour. Paragraph 55. You would delete the words "having not heard from the Second Respondent", and I should indicate, in fairness, having said to my friend, I will take the Court to different pages of the application book dealing with the same point.
In relation to paragraph 56, the last sentence is not pressed and the same pages of the application book will be referred to. In relation to paragraph 58, the paragraph should now read, "On 27 March 2001 we did not attend the hearing. Neither my husband nor I was well enough to attend the hearing." And annexure E is not pressed.
GLEESON CJ: Yes. That covers that affidavit, does it?
MR KNOLL: That covers that affidavit, your Honour.
GLEESON CJ: Yes, we have read that affidavit.
MR KNOLL: Thank you, your Honour. The next affidavit is the affidavit of the second prosecutor of 31 October 2001, which appears at the application book, commencing at page 303. I understand there are no objections to that affidavit. Would it help the Court if I handed up a short summary of the resolution of objections?
GLEESON CJ: No. You have dealt with them now, have you not?
MR KNOLL: Thank you, your Honour.
GLEESON CJ: Just give us a moment to look at this affidavit. Thank you.
MR KNOLL: Your Honour, I next read the affidavit of the second prosecutor of 22 November 2001, which relates to the question of suppression. That is not in the application book. It was sworn subsequently.
GLEESON CJ: Is this to do with identity?
MR KNOLL: Yes, your Honour.
GLEESON CJ: Now, that is not a contentious matter, is it, Mr Williams?
MR KNOLL: I understand it is not.
MR WILLIAMS: No, your Honour.
GLEESON CJ: What are the actual orders that you seek? Is it in the notice of motion dated 21 November 2001?
MR KNOLL: It should be, your Honour. Will you excuse me just a moment, I have mislaid my copy?
GLEESON CJ: I think we are content to make the orders that you seek.
MR KNOLL: If it please the Court.
GLEESON CJ: All right, we will make the orders sought in the notice of motion dated 21 November 2001. I had better just draw the attention of the Deputy Registrar to the fact that paragraph 2 of the notice of motion will need to be taken account of in any publication of any reasons for judgment in this matter. As to order 1 there, Mr Knoll - - -
GUMMOW J: You want the whole Court file to be in an envelope to be opened and reopened? It looks like an impossibility to me.
MR KNOLL: Your Honour, it is to secure the identity of my clients and if it needs to be varied we are content with that. I think I can anticipate what your Honour's concern is.
GUMMOW J: It seemed to me if you have 2 and 3, you have enough.
GLEESON CJ: What is the object of 1? It is to prevent strangers to the parties to the proceedings coming along - - -
MR KNOLL: That is all it is, your Honour. There is no complaint with the parties, their solicitors having access.
GLEESON CJ: And you do not contemplate, as I would understand it, there has to be an order in the Court every time somebody in the Registry wants access to the file for the purpose of - - -
MR KNOLL: No, your Honour. Order 1 might be modified and I perhaps incorrectly anticipated your Honour Justice Gummow's suggestion - I am sorry, I misspoke. I withdraw that, your Honour. The object of order 1, to clarify it, is to ensure that, indeed, strangers or third parties do not access the file and discover the identity of my clients. If order 1 might be varied to indicate that persons, who are not parties or their legal representatives, ought not have access to the file, that would be quite sufficient.
GUMMOW J: You need an order that no stranger will have access to the file without the order of a Justice. Is that not enough?
MR KNOLL: Your Honour, that would be sufficient also.
GLEESON CJ: Why do not you and Mr Williams have a word about a possible reformulation of order 1. We will make orders in terms of paragraph 2 and 3 of your notice of motion and, in principle, we are agreeable to order 1, provided it does not work in a way that unduly onerous.
MR KNOLL: I appreciate the concern, your Honour.
GLEESON CJ: So, you can have another go at that.
MR KNOLL: Perhaps over the tea break Mr Williams and I might resolve that.
GUMMOW J: We do not have a tea break.
MR KNOLL: Might we then approach the Court at the end of the matter, accordingly?
GLEESON CJ: Yes, thank you. Yes, Mr Knoll?
MR KNOLL: The next affidavit is the affidavit of Susan Anne Doherty, sworn 16 November 2001, which appears, commencing at page 324 of the application book.
GLEESON CJ: Yes, we have read that.
MR KNOLL: Your Honour, the remaining item concerns documents in relation to which my friend wishes to move a motion, and I am content to take the floor to my friend at this point.
GLEESON CJ: All right. Well, let us deal with that now. You have a notice of motion, Mr Williams, dated 28 November?
MR WILLIAMS: Yes, your Honour.
GLEESON CJ: Are we going to get a look at this folio 83?
MR WILLIAMS: We have it available, your Honour.
GLEESON CJ: I get the impression that the other folios are merely about folio 83.
MR WILLIAMS: That is so, your Honour.
GLEESON CJ: Can you just remind us what the evidence is about folio 83? Is there evidence as to whether it was looked at by the Tribunal member?
MR WILLIAMS: The extent of the evidence is a reference in a letter from the Freedom of Information officer of the Tribunal which is contained at page 107 of the book at about line 45.
GLEESON CJ: Thank you.
MR WILLIAMS: That is the extent of the evidence. The other correspondence, as your Honour the Chief Justice observes, concerns folio 83, and it was with a different area of the Tribunal, the Freedom of Information officer.
GLEESON CJ: Now, that statement, "it had been seen by the Tribunal reviewing your application": there were two Tribunal reviews of this application. There was the one that ultimately resulted in proceedings in the Federal Court and there is the one with which we are concerned. Is that a reference to the first or the second or to both of those?
MR WILLIAMS: From the chronology, your Honour, I think it would have to betaken to be a reference to the second.
GLEESON CJ: Right, and the word "Tribunal" we can take to mean "Tribunal member"?
MR WILLIAMS: In context, that appears to be its meaning.
GLEESON CJ: Thank you. Are we going to see folio 83? Has Mr Knoll seen it?
MR WILLIAMS: Yes, your Honour.
MR KNOLL: Your Honour, I should indicate I have just been handed it and have only had a very brief look at this point. I did have an opportunity to inspect it when the matter was before the Federal Court but handed it back on that day.
GLEESON CJ: Right.
MR WILLIAMS: If I might have leave to hand up the original and three copies of exhibit SAH1 confidential.
GLEESON CJ: Thank you.
MR WILLIAMS: I should indicate folio 83 is the last of the pages of the exhibit.
GLEESON CJ: The purpose of this letter appears in the concluding sentence, I gather?
MR WILLIAMS: That, and we say, is the only purpose.
GUMMOW J: What is the reason for it being confidential?
MR WILLIAMS: That is in the succeeding communications.
GUMMOW J: I see.
MR WILLIAMS: The author of the document is asked first, as recorded in the file note, at about point 5 of the file note, the entry for 20 February 2001.
GUMMOW J: It is really to protect the confidential position of the person writing the letters to the Tribunal, is it not?
MR WILLIAMS: That is so, the fact of communication and the opinion expressed. That is reiterated in the first appearing of the documents in the exhibit, that being a letter of 28 February 2001 which bears the word "confidential" at the top.
GUMMOW J: Thank you.
GLEESON CJ: Obviously, the member referred to in this document is the first.
MR WILLIAMS: That is so, in this document, yes. The member referred to in the first letter is the first Tribunal member.
GLEESON CJ: This is the letter, access to which was denied under the Freedom of Information Act 1958 ?
MR WILLIAMS: Each of these communications was the subject of a denial.
GLEESON CJ: Just remind us, there was some internal review about that?
MR WILLIAMS: There was, which affirmed the position.
GLEESON CJ: Then there was litigation commenced but not pursued to finality, is that right?
MR WILLIAMS: No, there was a right of merits review in the Administrative Appeals Tribunal. That was not exercised. It did, the prosecutors say, occur after the Tribunal's decision, that is to say, the right to appeal arose.
GLEESON CJ: There was never any review of this Freedom of Information Act decision except an internal review?
MR WILLIAMS: That is so.
GLEESON CJ: The first of the documents in this bundle bears a date - I am just having a look at the chronology again - preceding a number of the events relevant to the history of this matter. The name of the Tribunal member is written on the top of it, amongst a number of other names, do you see that?
MR WILLIAMS: I do not, your Honour.
GLEESON CJ: I am going to put a ring around it and hand you down my copy.
GUMMOW J: There is a box, stamped, do you see that?
MR WILLIAMS: I am sorry, your Honour is indicating the blank box?
GLEESON CJ: You call it blank, it is a stamp.
MR WILLIAMS: I am sorry, I had taken your Honour the Chief Justice to be referring chronologically to the first of the documents.
GUMMOW J: We are referring to folio 211.
GLEESON CJ: Yes.
MR WILLIAMS: I am sorry, your Honour, yes.
GLEESON CJ: The point I want to make, if it is correct and I invite your comment on it, is that it appears from internal evidence in this document that this document was also sent to the Tribunal member before she made the decision.
MR WILLIAMS: If your Honour is referring to the name of the Tribunal in the box, we do not accept that inference arises that identifies the member.
GLEESON CJ: I am very surprised that you do not accept that because I would have thought that what this letter does is explain something that had been said in the previous letter in a manner, I would have thought, you would want to embrace. Have you read this letter?
MR WILLIAMS: I have, your Honour. Yes, I am sorry, I withdraw that submission.
GLEESON CJ: If you have a look at the concluding paragraph on the bottom of folio 211, I would have thought it explains what is meant by an expression that appears in folio 83.
MR WILLIAMS: Yes, we accept that, your Honour. Your Honour, we formally read the affidavit of Ms Hanstein and draw attention to paragraph 8 which indicates that the assertion as to confidentiality is maintained by the author.
GLEESON CJ: All right. What do you have to say about this, Mr Knoll?
MR KNOLL: Your Honour, may I put our position in two alternative ways. The first is that it being accepted that the letter, and indeed each of these documents, was not provided to my clients by the Tribunal at any time prior to decision, the withholding of them underpins ground B of the application. The second proposition is if, as a fall-back position if that is not persuasive, if it is necessary to refer to the content of the letter to assess the degree to which it had any impact on the Tribunal's decision which, principally, we do not accept as correct in law, then the Court should receive the letter and assess that. Equally, I will need to obtain instructions from my client in relation to the degree of criticality issue, and for that purpose they ought to be entitled to see the document in order to give me instructions.
GUMMOW J: What is that second basis again?
MR KNOLL: Your Honour, if the Court were to accept the proposition that ground B of the application which relates to the withholding of those documents - - -
GUMMOW J: This is a fall-back position?
MR KNOLL: It is, your Honour.
GUMMOW J: Yes, now what is the fall-back position?
MR KNOLL: The fall-back position is if the Court needs to assess the degree of criticality of the documents in order to rule on ground B, then the Court needs to see the content of the document and it should be received. In that instance I will need to obtain instructions which, hitherto, I could not possibly have obtained from my clients.
GLEESON CJ: Instructions about what?
MR KNOLL: The degree of criticality of the comments made here in the context of the other documents they have put before the Tribunal.
GLEESON CJ: I am not sure what you mean by that. By criticality, you mean criticality to the member's decision?
MR KNOLL: Yes, your Honour.
GLEESON CJ: How is your client in a position to give instructions on that?
MR KNOLL: The question that would then arise is were my client to have been able to see this before the Tribunal made a decision, could my client have put forward anything by means of response that could have ensured that the document had no possible impact on the Tribunal's decision.
GLEESON CJ: That assumes that it could have had a possible impact on the Tribunal?
MR KNOLL: Yes, your Honour, it clearly does and that is why I am saying it is a fall-back position.
GLEESON CJ: Yes, we will make the orders sought in the notice of motion dated 28 November 2001. Is that the whole of the evidence?
MR WILLIAMS: Your Honour, I am not sure whether my friend tendered the documents referred to in the chronology "Agreed facts". If he did, that is the whole of the evidence as I understand it.
GLEESON CJ: Let me look at that chronology again, Mr Williams. What document, which are the - - -
MR WILLIAMS: If your Honour sees the application book references.
GLEESON CJ: Yes, give us an example of the document you have in mind.
MR WILLIAMS: Your Honour, any of the documents referred to. The agreed chronology or statement of facts is not, of itself, complete, it relies as well on the documents to which - - -
GLEESON CJ: Just give me one example of the document you are worried about.
GUMMOW J: Are these not taken from the findings of fact in the Tribunal's decision?
MR WILLIAMS: Yes, your Honour, they are.
GLEESON CJ: I do not see any problem about this.
GUMMOW J: No.
GLEESON CJ: If a problem arises in due course, then you or Mr Knoll can let us know and we will deal with it, but just at the moment I do not see a problem.
MR WILLIAMS: Yes, may it please the Court.
GLEESON CJ: Is that the whole of the evidence?
MR KNOLL: Your Honour, on that understanding, it is.
GLEESON CJ: All right, well it is time for your address, Mr Knoll.
MR KNOLL: Your Honour, the core of the application is an application that says, in its simplest terms - and I will elaborate on it in due course - that a person who applies for a merits review before an administrative tribunal that operates inquisitorially, must be given a useable opportunity - as put in the case of Re Polemis, which I will come back to - to get their tackle together. It is the case of the applicants that that did not happen in this instance by reason of their mental illness which was known to the Tribunal.
In particular, what my clients sought was an opportunity, primarily for the first prosecutor but secondarily for the second prosecutor, to recover mental health and then, with the benefit of proper disclosure of the material that the Court has just received, to prepare for and attend a fair hearing principally in relation to the issue that was presented to them by the Tribunal member on 17 November 2000. There are two sub-issues in ground A, and I will come to grounds B and C momentarily. The first is - - -
GLEESON CJ: Incidentally, just to facilitate discussion between us, correct me if I am wrong but I do not understand that there is anything in the confidentiality orders that have been made to prevent reference, without mentioning the names of your clients, to their country of origin, to the circumstances that are alleged to have given rise to their fear of persecution, to their movements after they left their country of origin, except the precise date on which they arrived in Australia? Is that right?
MR KNOLL: I think, strictly speaking, that will be so, your Honour, yes. Might I flag two sub-issues please, in relation to ground A. The first is the question of unfitness by reason of mental illness, as to which - and I will come back to momentarily - - -
GUMMOW J: That presents a question of fact, does it not, at particular times?
MR KNOLL: Yes, your Honour, and it therefore underpins the second sub-issue, which is, did the Tribunal deny procedural fairness by failing to postpone for a sufficient time to enable them to recover and thus have a useable opportunity to put their case.
GLEESON CJ: Mr Knoll, I am sorry to interrupt you again, but there is one factual matter that we had, perhaps, better clear up. What is the state of the evidence in relation to the letter that was said not to have been received? That is the letter of 5 March 2001 advising of appointments with the Commonwealth Medical Officer. Is it left in the position that there is a simply a finding of fact by the Tribunal member about that which is disputed?
MR KNOLL: No, your Honour. I will put it a little differently, if I may. The finding by the Tribunal was a finding not only that the letter was despatched and placed in the post office box that belonged to my clients, but that it was actually received by them. That finding was based upon some hearsay material, which I can take the Court to in answer to your Honour's question, and it belongs in the case dump document and I will take the Court to that if I may because it will facilitate the - - -
GUMMOW J: What I am trying to get out of you, are you challenging this fact of finding by the Tribunal, and how do you manage to do that?
MR KNOLL: No, your Honour, what we challenge - - -
GUMMOW J: You do not get another run, you know, in an application for prerogative relief.
MR KNOLL: The application is that there is an unfairness, a procedural unfairness, in finding that my clients did not intend to come to the hearing or to respond to the country information in so far as that finding is based upon them not going to visit the doctor in March or attending the 27 March hearing because they must have received the 5 March letter. It is three steps, your Honour.
GLEESON CJ: You say, must have received it, it was an inference that they did receive it. Where is the Tribunal's finding about this, what page?
MR KNOLL: Your Honour might go to page 154 of the application book.
GUMMOW J: Line 25.
MR KNOLL: Then on to page 155. In order to bring it in to context, one would have to begin at the first full paragraph, beginning "I find it implausible" on page 154, and conclude at the end of the short paragraph at the top of page 155.
GLEESON CJ: Yes, the finding of fact is at line 28 and 29, "I am satisfied that . . . the applicants received it".
MR KNOLL: Yes, your Honour. That finding underpins - - -
GUMMOW J: What is wrong with that finding? How can you get into all of that?
MR KNOLL: Your Honour, it is not the making of the finding that is challenged. It is what the finding underpins that is challenged. I might clarify that in an attempt to assist the Court and I will do my best if I can.
GUMMOW J: It seems to me that that was a finding that was, even if you could get into that area, well open to the Tribunal to make.
MR KNOLL: Your Honour, the Tribunal is not limited by the rules of evidence, and therefore it can make it. What that underpins, your Honour, is the paragraph at the top of page 155, and the 5 March letter is only a preliminary aspect to that finding at the top of 155, which is the more important from our perspective.
GLEESON CJ: Yes, I agree that that is the more important finding. Do you make a challenge to the finding at the top of 155?
MR KNOLL: Yes, your Honour, because it is seriously infected with the breaches of natural justice, to which I will come.
GLEESON CJ: Let it be assumed that the letter was received by the applicants on or about 6 March and that, notwithstanding the receipt of that letter, they failed to attend on the Commonwealth Medical Officer. What would be the inference to be drawn from their failure to attend the Commonwealth Medical Officer having received that letter?
MR KNOLL: Your Honour, it is our submission that no inference of relevance to the Tribunal's decision-making process can be drawn. There is an inference the Tribunal could draw, that they failed to attend the doctor, Dr Uy, U-Y is the spelling of his name or her name, I am not quite sure, your Honour. It cannot go further than that.
GUMMOW J: Why not?
MR KNOLL: I am sorry?
GUMMOW J: Why not?
MR KNOLL: I am trusting that is in answer to his Honour's question. If not, I am happy to clarify.
GUMMOW J: Why cannot it not go further? You say it cannot go further. As a matter of logic, or something else?
MR KNOLL: Your Honour, it would be my respectful submission that there is both a question of logic and experience to be taken into account. The question of logic is relatively plain, in so far as if someone does not attend an appointment, it is only evidence that they did not attend the appointment. The question of experience is a secondary one. When an administrative decision-maker is faced with a series of consistent medical certificates, one of which is given by a psychiatrist, qualified duly, the others of which are given by general practitioners, at least one of whom the Tribunal knows has familiarity in excess of a year and a half - - -
GUMMOW J: Yes, but the Tribunal was not very happy about the medical certificates, was it? It used phrases like "vague" and "unpersuasive".
MR KNOLL: It did, and - - -
GUMMOW J: Looking at them it seems to me it was open for it to take that view too.
MR KNOLL: Your Honour, one of the grounds of this application is that the Tribunal member is not expert in matters of mental health and had no relevant evidence as to the mental health fitness of the applicants before it upon which it could base any decision that they were fit and able to attend and chose not to.
GLEESON CJ: If you look at page 124 of the application book, which is written at a time very close to the hearing date, the author of that letter demonstrates what looks like a pretty reasonable degree of capability of representing her own interests.
MR KNOLL: Your Honour, there is available enough material - and I cite to some of that that was before the Court in the Raybos Case and I will come to it in a moment if asked to, where the question arises as to what a decision-maker might do with non-medical evidence which might appear to countervail medical evidence. The most that can be said of that letter and, indeed, some of the other correspondence, is that the author of the second prosecutor appears to be lucid and able to write a good letter. It is not evidence that the person is able - and this is the key issue in terms of a useable opportunity - to gather evidence internationally because the issue was posited by the Tribunal as the chance of persecution upon return to the home country, in this instance Romania, and that involves significant tasks of research and information gathering in order to try and persuade a Tribunal that there is more than a remote chance.
GLEESON CJ: I wanted to draw your attention to paragraph 2 of that letter. If the finding of the Tribunal is right, the statement of fact in paragraph 2 is untrue?
MR KNOLL: To which sentence does your Honour refer?
GLEESON CJ: "We were not notified of such appointment."
MR KNOLL: If the finding of the Tribunal were a correct one, that would be right.
GLEESON CJ: If you look at the remainder of the letter, you find the author very vigorously asserting her rights in various respects and contesting the position taken by the Tribunal. Was this letter before the Tribunal when the Tribunal decided to proceed with the hearing?
MR KNOLL: Your Honour, the date of receipt, I will just check if I may - - -
GUMMOW J: The date of receipt is the 26th.
MR KNOLL: The 26th, then it must have been, your Honour.
GUMMOW J: Yes.
MR KNOLL: Can I address the question differently because there is a second part, clearly, to the question that has been put to me, and I think it really has two parts to an answer as well.
GLEESON CJ: The problem you have to face up to is that the Tribunal member who is dealing with this is considering whether it is the case that your clients, that is numbers 1 and 2, are in a state of such psychological collapse that they cannot properly be expected to represent their case, or present their case, at a hearing of the Tribunal. The day before the date fixed for hearing she, that is the Tribunal member, receives that letter.
MR KNOLL: Yes.
GLEESON CJ: What is she supposed to make of it in terms of assessing whether or not your clients are in a state of psychological collapse?
MR KNOLL: She is not to assess, on the basis of the vigorousness with which one writes a letter, the mental fitness of a person to conduct international research to prepare and present material, from overseas because that was necessary, to deal with the question in the 17 November letter. I need to take your Honour back to that to answer the question.
McHUGH J: This argument does not really face up to the fact, Mr Knoll. The real issue here is whether or not the Tribunal thought that your clients had embarked on a course of deliberate refusal to attend, and that was the view. The submissions that you have put have to be read against the fact that your clients had failed to attend on three consecutive occasions: on 24 November, on 9 January, and on 13 February. They then, on the Tribunal's findings, lie about receiving the letter. Add to that, there is this amazing coincidence that the day before that your clients are supposed to be there at the medical appointment, there comes a fax saying that they had not received any letters from the Tribunal since 26 February. The Tribunal is entitled to take the view, "We live in the real world. These people are just deliberating delaying the date of decision." That being so, why was the Tribunal not entitled to proceed from that moment on, on that basis?
MR KNOLL: The answer to that, your Honour, is squarely this, and I cannot submit it any higher. The Tribunal had before it medical evidence that the first prosecutor, because he was the patient of the psychiatrist in the first instance, was severely depressed, needed to reassessed in late January, and was not fit, and subsequent, qualified doctor's certificates to the same effect.
McHUGH J: The Tribunal took the view that they were in an unsatisfactory form. There was the fact that there was this movement around of doctors, three general practitioners. One Tribunal might have said, this is all very unfortunate, these people are obviously in serious condition so far as their health is concerned. Another Tribunal might take the view, as this one apparently did, that your clients had no intention of fronting up for the hearing, particularly after you receive a letter such as the letter that the Chief Justice referred you to.
In any event, this is the problem. It seems to me that the critical problem is, was the Tribunal entitled to take the view that your clients were deliberately staying away from the Tribunal?
MR KNOLL: Would your Honour excuse me for just a minute?
McHUGH J: Yes.
MR KNOLL: Your Honour, my instructing solicitor reminds me that the fact that the second prosecutor might be able to write a lucid and cogent letter, or more than one, does not demonstrate that the first prosecutor, who was the principal applicant and whose experiences in Romania are the core of the application, is able to present his story.
McHUGH J: No, but the point is whether or not the letter was received on 6 March, and the Tribunal was satisfied that it was. There are two views about that. Either the wife, on behalf of the husband, is just lying about it or she has kept it away from him and she is writing false letters to the Tribunal, or, they are in it together. These things have to be examined in the real world and what people do, and the Tribunal has made a harsh judgment about your clients but, on the evidence, it seems to me, a judgment that was well open to them.
MR KNOLL: Your Honour, I respectfully submit that the only way I can dissuade the Court, indeed, of forming that preliminary view, is to put it into its proper context and to do that the only way I can make my submissions and ask that the Court hear me, is to actually take the Court through the history of the material relating to the medical mental health state of my clients and, in particular, the first prosecutor. I respectfully agree that if one looked at that letter and that letter alone, one might form the view that your Honour has just put to me. I will be making my submission on the basis that, in context, that is not a view that was reasonably open to the Tribunal and that the Tribunal did not have any proper basis upon which to determine that this letter was evidence of fitness to prepare for and attend a hearing on the specific issue put to my clients on 17 November 2000. If the Court would permit me to try and build that case I would be grateful for the opportunity.
May I take the Court first, please, to application book, page 68.
GUMMOW J: This is designed to show that this finding was not open to the Tribunal, is it?
MR KNOLL: It is designed to show that the finding that the - - -
GUMMOW J: Not just that it was wrong?
MR KNOLL: No, your Honour, if you would just permit me to gather my words for a moment please. It is designed to show that the finding in relation to the intention of the clients not to attend and present their case was not open.
GUMMOW J: Not open.
MR KNOLL: Not open.
GLEESON CJ: Yes.
MR KNOLL: Your Honour, I do appreciate the standard I have to achieve.
GUMMOW J: Yes.
MR KNOLL: This is the first of the medical certificates that was before the Tribunal and it came with a letter that immediately precedes it, that commences on pages 66 and goes to 67. Dr Mechrecky - and I am sorry if I do injustice to the pronunciation of his name - says that he saw these patients "suffering from anxiety and from" and then I cannot read the next word that precedes "depression/psychological problem". These patients are referred "to a psychiatrist" for reassessment and, I think it says "follow up" your Honour, that is as far as I can determine that. What your Honour also needs to do to understand this in context is to look back to page 67. The second prosecutor says, and I will just read from the sixth line of paragraph 5 please - - -
GLEESON CJ: By the way, there is no suggestion that these letters have written with any legal assistance, is there?
MR KNOLL: There is none.
When it is now obvious that we are ill, exhausted and unable to defend ourselves, the Tribunal makes pressure on us in order to expedite the case. All of the above lead us to the conclusion that the Tribunal is biased against us and what it attempts to expedite is in fact our rejection.
I must jump a little to paragraph 6:
My whole family suffers the consequences of the agonizing insecurity and inhuman conditions we were subjected to for almost six years. Here annexed is a certificate issued - - -
GUMMOW J: What are the inhuman conditions?
MR KNOLL: I am confident that that is a reference to the problems in Romania, and subsequently in Belgium, that the applicants experienced.
While it is most important to us to attend a hearing, our condition has become an insurmountable handicap which will be assessed a.s.a.p. by a specialized medical practitioner. Accordingly, we request that in the meantime -
that clearly is a reference back to the "assessed a.s.a.p.".
you put the hearing on hold.
It says in paragraph 7:
our case cannot be fairly determined in circumstances where we are not given the opportunity to investigate and bring forward updated information in support to our application. Such investigation cannot be made as long as we are incapacitated as a result of hardship and condition.
I just wish to bring to your Honour's attention of what is being sought, is a delay while a specialised opinion is obtained, at this stage.
GLEESON CJ: The proposition is "we are incapacitated"?
MR KNOLL: Yes.
GLEESON CJ: The author of that letter does not give the impression of being an incapacitated person.
MR KNOLL: Indeed, everything before the Tribunal indicated that the second prosecutor had far more of her wits about her than the first prosecutor, who had virtually none. It is, after all, his case. Both Tribunal decisions make clear that it is principally his case and he was the person who was involved with the - I have to be careful how I say this to not disclose an identity - unwelcome elements of the government in his home country.
GLEESON CJ: That is why I asked you a question I asked you earlier. I do not understand that to be the subject of any confidentiality order. I raised this issue with you for this very reason.
MR KNOLL: Sorry, your Honour, I have clearly misunderstood.
GLEESON CJ: I do not see anything in the confidentiality orders that stops references to the name of the country of his origin or to the identity of the organisation in that country with which it was said he might have had an association.
MR KNOLL: Your Honour, I accept that I misunderstood the earlier point and might I do it more clearly at this stage. The proposition is this - and I will reframe it if I may - that he had an involvement with the Romanian Secret Service, both before and after the overthrow of Ceausescu Government, and that she did not have that involvement and that his involvement and the events which he knew gave rise to the fear of persecution. The question that the Tribunal put on 17 November 2000 was whether the fear of persecution was well-founded as at the date the second Tribunal had to make its decision. I think I have done it a little more precisely, your Honour, and I appreciate the opportunity.
What the second prosecutor is asking for, and I accept she had done it quite lucidly and she puts the case for her husband strongly; he needs a chance to tell his story and to be able to deal with the well-foundedness issue as well because there is now a remitter, that means we need to be reheard at merits review level, that means we need to develop the fact of persecution, the fact of fear and the well-foundedness of the fear.
GUMMOW J: None of these have been developed on the first round?
MR KNOLL: Your Honour, it is respectfully put that the fact of persecution and the fear were put. There were findings which are part of a decision that has been found reviewable, remitted - - -
GUMMOW J: Yes, but have been found reviewable for a very technical defect. What I am asking you is - - -
MR KNOLL: Your Honour, reviewable means it has been set aside.
GUMMOW J: I realise that too, but all I am asking you is that at the time of the first proceeding were any of these matters agitated or was the whole thing on a much more limited basis?
MR KNOLL: I would respectfully say that both the fear, ie, the basis of the fear, and its well-foundedness, must be reagitated because they both have to be in evidence before the Tribunal at the time the second Tribunal makes it decision.
GLEESON CJ: That is right, but the matter you have to face up to - and it is referred to in the reasons for the Tribunal member - is, and let us not put too fine a point on it, the question of whether your clients were stalling for time in late 2000 and early 2001 has to be assessed in the light of the very long history of the matter.
MR KNOLL: I accept that proposition, your Honour. The long history is a context in which the Tribunal, as second constituted, had to assess each of the elements that make up the application for a merits review. The critical evidence that had to be before the Tribunal, as second constituted, was the evidence of the first prosecutor.
GUMMOW J: I realise that. That would require some updating of what he had put to the first Tribunal from his point of view, the point of view of preparation would require some updating, I suppose.
MR KNOLL: It would require - - -
GUMMOW J: It would not require to start again, would it, from his point of view? He would not throw away the materials he has used before, would he? You have to be sensible about all this.
MR KNOLL: There is evidence - - -
GUMMOW J: If he had country information about what was going on in Romania at a relevant date for the first proceeding of the Tribunal, why would he forget that?
MR KNOLL: Your Honour, that does not, I am afraid, address the question before the second Tribunal because following both Chen's Case and Mayer's Case to which I have adverted in my written submissions - - -
GUMMOW J: You are saying he needed time to initiate all of this. What I am asking you is, why? He had lots of time.
MR KNOLL: He needs to be able to make the appropriate contacts, in a circumstance where he is so depressed he is not functioning properly, that the people he knows - - -
GUMMOW J: Is he said to be not functioning properly at the time of the first Tribunal matter?
MR KNOLL: No, that is not put.
GUMMOW J: Right.
GLEESON CJ: The practical issue, as I understand it - and again I invite correction if I am not understanding it correctly - that it largely came down to is this, was it not: the Tribunal found against your client, ultimately on the factual ground that about a quarter of the entire population of Romania had, willingly or unwillingly, provided information to the Securitate, and in that circumstance, bearing in mind that your client was never an officer of that organisation, the Tribunal did not accept that return to Romania would involve persecution? There may be things to be said one way or another about that issue, but had not most of them been said?
MR KNOLL: The answer to that, your Honour, is most, but not all of them, had been said. If I might take the Court for a moment please, because there is clearly a substantive issue troubling the Court, and that is, what of substance still remained to be put? I need to take the Court, if I may, to two parts of the application book to at least identify that issue, accepting for a moment that this is not a merits tribunal, but so that the Court is at least apprised of what the issue is.
The first item is at page 184 of the application book. This is the material that was before the first Tribunal, in answer to your Honour's previous question.
GUMMOW J: Yes.
MR KNOLL: May I take the Court, please, specially to the last paragraph on the page.
GLEESON CJ: The subject on the top of the page is of some significance, is it not?
MR KNOLL: It is. The subject is of importance. It relates to persons who spied for the Securitate.
GLEESON CJ: That is a fair formulation of what was the essential merits issue before the Tribunal, is it not?
MR KNOLL: It is. Your Honour, the specific problem that faced the Tribunal comes from the last paragraph. What is said there is that:
Former Securitate officers -
and it is accepted that the first prosecutor was not an officer in that nomenclature -
are treated well today in Romania. They are able to live a normal life without threats. Several of them are now thriving in the private sector as businessmen. Unless a former officer has "defected" to a foreign country and released secrets about Romania, the source could not conceive of a reason why a former member of the Securitate would be in danger today in Romania.
One of the issues that was before both Tribunals - and in relation to which the first Tribunal moved through to the well-foundedness question without fully dealing with this, because it was able to base a decision and say, "if it is not well-founded, that is the end of the matter" - is whether the first prosecutor fell within the exception, beginning with "unless". It is submitted that the quotes around the word "defector", as in so many political dissident cases, relate to whether the person is perceived to be a defector.
GLEESON CJ: No. That is a combination of two facts.
MR KNOLL: Yes.
GLEESON CJ: Is there evidence that there had been a release of secrets?
MR KNOLL: That comes later, your Honour, and I will take the Court to that. Sorry, I misunderstood the question, I apologise. Is there evidence that there had been a release of secrets? The answer to that is in 18 hours worth of tape before the ministerial delegate. On my instructions, it is, yes.
GUMMOW J: Released to whom?
MR KNOLL: Sorry?
GUMMOW J: Released to whom?
MR KNOLL: Principally, the Minister's delegate. The problem, however, your Honour, is not whether they were actually released. The problem is whether there is a perception that they were released, because persecution, and the fear of it, does not arise from the actual event of which a defector is accused; it arises from the perception that the defector has done what he is accused of.
In the matter before the first Tribunal, the first Tribunal placed some reliance upon the fact that Securitate files had remained secret and locked. As to the second Tribunal, would your Honours please turn to page 184 - sorry. If you look a little higher, that is where the problem of non-release of documents arises, on the same page I was at previously. At page 188 - and this is from the country material provided by the Tribunal - at approximately 30, your Honours will see that since 1999, there is legislation permitting access to secret police files.
Now, the question that was put to me a few moments ago was is it just a matter of updating? Well, the answer is somewhat more significant, because having been shown this material, where the actual position in relation to the secrecy of files held in Romania has changed, the well-foundedness of the fear also will have changed, because there needs to be an investigation whether the matters in relation to which the first prosecutor was involved with the Securitate fall within this release. That, substantially, can affect the nature of the fear and its well-foundedness. That is why the investigation into events that occurred between 1996 and 2000 affect not only the well-foundedness of the fear, but whether it continues to be genuine, and what the basis of the fear of persecution is.
GUMMOW J: The Tribunal dealt with this at page 171, did it not? That is to say, with the 1999 law.
MR KNOLL: And it did that, your Honour, without the benefit of anything from the first prosecutor, who was the person involved.
GUMMOW J: What would he have said?
MR KNOLL: I cannot say that, your Honour, because he has not had a useable opportunity to put his tackle together to do that. That is the difficulty here.
GLEESON CJ: You do not make out a case, I gather, in which you say, "My client was denied procedural fairness, and if procedural fairness had been extended to him in March of this year, he would have had this to say." You do not seek to make out a case like that?
MR KNOLL: I am not in a position to say that, your Honour.
GLEESON CJ: Why are you not in a position to say that?
MR KNOLL: I am not in a position to say that for two reasons: firstly, because of the state of mental health of the first prosecutor, and - - -
GLEESON CJ: At the moment, he is capable of giving you instructions to conduct these proceedings.
MR KNOLL: I can safely indicate to the Court that almost entirely, but not completely, the instructions have come from the second prosecutor.
GLEESON CJ: Experience shows that there are some cases in which a person who says that he or she has been denied natural justice will come to a court and say, "If I had been given an opportunity to deal with this matter, this is the way I would have dealt with it."
MR KNOLL: I understand.
GLEESON CJ: But you do not seek to make out a case of that kind.
MR KNOLL: Well, I am making out a case that goes this far, your Honour, which is as far as I can safely put it: the first prosecutor would have made contact with relevant people in Romania, being fit to do so.
GUMMOW J: He has not done it between March and now.
MR KNOLL: There is no evidence that he has done that, your Honour. The evidence that was put forward relates to the time at which the Tribunal made its decision, and the question is whether - - -
GUMMOW J: The question is, what we do now.
MR KNOLL: Yes. Well, the short answer - - -
GUMMOW J: And what we do now in terms of giving relief is bound up with these very practical questions that the Chief Justice has been putting to you. We do not live in a vacuum, either.
MR KNOLL: That is appreciated, your Honour. The critical element is, given that the Tribunal is functus, as second constituted, what ought this man to do - assuming fitness - to put his case? The only place he can put his case on the merits is before the Refugee Review Tribunal, were the case to be remitted. It is not for him to put his merits case here.
GLEESON CJ: And if the case is remitted to the Refugee Tribunal, when will it be ready to proceed?
MR KNOLL: The process that, it is respectfully submitted, ought to occur, is a remission on terms that requires his current treating psychiatrist to provide a prognosis to the Tribunal, to update any change of that prognosis to the Tribunal, for him to appear as soon as - - -
GUMMOW J: Why not the Commonwealth Medical Officer?
MR KNOLL: Your Honour, that would be acceptable. If there were a Commonwealth Medical Officer who is a psychiatrist prepared to do that, that would be an acceptable process.
GUMMOW J: When has that first been said?
MR KNOLL: I am putting it, your Honour, because I specifically asked for those instructions. It is a matter for instructions, and the Court has power to remit on terms.
GLEESON CJ: But what you do not have any instructions about is instructions to indicate that if your client had been given an opportunity to deal further with this issue of merits that we have been talking about, there are particular matters that he could and would have put to the Tribunal.
MR KNOLL: I am caught in a circular conundrum and I had best explain what it is, because the Court is entitled to the practical answer, as well. The case I am putting, and your Honours, fairly, are questioning it, is that the prerequisite to conducting the necessary investigation is the mental fitness. The question that is being put to me - - -
GUMMOW J: Assume the contrary.
MR KNOLL: Well, the minute one assumes the contrary that there is no prerequisite of mental fitness, ground A disappears. I accept that. That is the issue.
GLEESON CJ: But you do not want us to act on the basis that if your client had been given an opportunity, further and better, to deal with this merits issue, he would have set out to demonstrate to the Tribunal that, far from it being the case that people like him are now well-treated in Romania - partly because they constitute a very large proportion of the population - they are being very harshly treated in Romania?
MR KNOLL: The case I am putting is not quite that, but it is not far different. The proposition is that - and it depends on what Justice Gummow has just put to me. If mental health is a prerequisite - and if your Honour will permit me to just push the assumption one step further - and mental health recovers, so the man has his tackle together, does he deserve the opportunity to investigate present conditions in Romania and put his case on the merits to the Refugee Review Tribunal?
GUMMOW J: But this all comes back to what Justice McHugh put to you, that is to say, all of this further debate does not arise if the Tribunal's conclusions at page - - -
MR KNOLL: Page 155 at the top, your Honour.
GUMMOW J: - - - yes, and 154, stand.
MR KNOLL: I accept that that is my hurdle, and I was midway through building the context in order to develop that.
GUMMOW J: All right.
MR KNOLL: I do appreciate what has been put to me from the Bench. The difficulty - and this I should indicate to the Court now - also relates to ground C. The difficulty is, as one goes through the evidence, one sees that the Tribunal was not open to the possibility that they needed to have their mental fitness about them. I will demonstrate that through the succeeding correspondence. The Tribunal replied to the letters I adverted to before the present course of questions at page 71 of the application book. The second paragraph, beginning, "The Member has considered your request", refers to a request:
that she put your hearing "on hold" for an indeterminate length of time while you consult a "specialised medical practitioner".
Now, one must refer back, here, to page 67 to see what it was that the second prosecutor sought for her husband. She asked for a delay while a specialised assessment was obtained ASAP. Within a week, the specialised assessment was obtained, but what the Tribunal comes back with is only the concept that it is "an indeterminate length of time". If your Honours will permit me to develop these steps a few lengths further, I will try and anticipate the specific issue that is arising out of this. The member is focusing on her need to conduct the proceedings efficiently. Now, on 21 November, the first prosecutor attends upon Dr Tran, and on 23 November, sees the psychiatrist Dr Burek. Now, this is within a week of that request. The medical certificates are forwarded to the Tribunal - - -
GLEESON CJ: Where do we see those?
MR KNOLL: They are at pages 198 and 199. The first of the certificates - and, if I may, by preliminary point, just draw the Court's attention to the top left-hand corner of 198. Your Honours will see there that Dr Sipeli and Dr Tran, the principal general practitioners providing certificates, are in the same practice. There are, at various points, suggestions by the Tribunal that my clients are doctor-hopping. They are going to that practice. In the middle, the diagnosis appears:
In the state that they are in at present, they are unfit to present themselves at the tribunal. I have started them on an antidepressant and they have an appointment to see a psychiatrist (Dr Burek - - -
McHUGH J: Could I just stop you there, because Dr Tran did not know what went on in the Tribunal.
MR KNOLL: No, does not know that.
McHUGH J: No, he did not know it. He admitted it. There is a file note to that effect, of a telephone conversation with him.
MR KNOLL: I am sorry, your Honour. I may be misunderstanding the question.
McHUGH J: Dr Tran there expresses an opinion that they are unfit to present themselves at the Tribunal. When he was telephoned and asked about - - -
MR KNOLL: Yes. That is at page 200, at point 5.
GUMMOW J: Page 200, point 6.
MR KNOLL: Point 6, sorry. Thank you, your Honour. What is presented there is, with respect, a leading question from Ms Livingstone. Ms Livingstone puts to the doctor that what he should be opining on is a circumstance where an RRT hearing is an informal, non-adversarial process, with an interpreter provided, where the applicants, before that Tribunal:
are allowed to bring friends or relatives with them for moral support and that they are not expected or obliged to conduct a presentation, that all their material has already been written and presented -
Now, it is quite clear that when one attends a Tribunal hearing, whether it is in question and answer mode or otherwise, you are expected to present your case. The Tribunal is skilled and experienced in dealing with people who are in a state of distress. That is on 23 November.
On the 29th, the telephone message is returned, and that is noted at the bottom of page 200. In answer to question 6, Dr Tran says that:
they give the impression that the Tribunal hearing is like a court.
That is what he is recorded as having said. What one can infer from that is that the Tribunal does require evidence to be presented, and that ought not to be a point of great controversy. What Dr Tran is saying is that they are not fit, but then they go promptly to the psychiatrist to whom they are referred - Dr Burek. His certificate, dated the 23rd - two days later - within the week for the request for a postponement, at page 199, indicates:
For at least the next month, they are not fit to appear in tribunal or courtroom settings.
Now, quite reasonably, the Tribunal follows up these two doctors. It is acknowledged that that was reasonable.
GUMMOW J: Page 202, line 34, it is said that your client has a pending court case "concerning unfair dismissal from employment." This is August 2001.
MR KNOLL: Yes, your Honour. That was before the Tribunal, but not in that form. This is a document that was, by agreement, taken out of the evidence.
GUMMOW J: I see.
MR KNOLL: My friend objected, and I withdrew. The response from Dr Burek and the correspondence there is of some importance. It is of importance for ground A and it is of importance for ground C. The Tribunal writes to Dr Burek - and the text of that letter I will just come to in a moment, if I may. Page 84 - I am sorry, 81, 82. The Tribunal member describes, in the second dot point paragraph, that the decision in the first Tribunal hearing was remitted "for a technical reason". The member says:
The reason for telling you this is to indicate that Mr -
and this is prosecutor 1 -
has some familiarity with the process and that he has already put all his claims in writing and gathered a large amount of information to support his claims.
Now, again, I stress the point that if all the claims were in, there would not be a right to be heard in any form. On the next page, the second dot point on 82 is also of importance, because this is the question being put to the psychiatrist by the Tribunal so the Tribunal can be informed as to the mental fitness of the applicants. The second dot point reads:
A general practitioner has informed me in a separate medical certificate dated 21 November 2000 -
and that clearly relates to Dr Tran's certificate of that date -
the couple are suffering from "stress/anxiety and depression" and that s/he has prescribed antidepressants. Can you indicate when one could expect to see an amelioration in their symptoms as a result of that medication? In regard to symptoms, I can note that -
the second prosecutor -
has been conducting an active and perceptive correspondence with the Tribunal in excellent English, a language I understand to be her third language. She is very alert to all aspects of her case and shows no sign of any mental impairment or lack of acuity, such as I understand may sometimes be the case with those suffering depression.
She asks, "can you indicate" whether the first and second prosecutors -
should be able to attend a hearing of the Tribunal in some six weeks time? If their condition should continue indefinitely, can you indicate to what extent this might affect their ability to participate in a hearing?
Now, those are accepted, reasonable questions. The reply, on page 83, is from Dr Burek. He identifies the diagnosis of major depression. He indicates - and your Honours will find this on the third-last line of the first paragraph - that there are "no signs of the medication being effective" at that time, and indicates in the last paragraph that the psychiatrist is "happy to see them weekly", but is on leave till 23 January. "It is possible that before 23rd December they may be well" and he could notify the Tribunal:
Otherwise, the proposal is that I would see them in late January and assess whether they have improved or not.
So the reply from Dr Burek is, "I cannot answer your question just now, but it is appropriate for me to reassess in late January and then provide some information."
GUMMOW J: Well, then there is a diversionary attack, is there not?
MR KNOLL: Your Honour, one should not accuse a psychiatrist of perhaps something quite so strong.
GUMMOW J: No, diversionary attack by one of your clients beginning with the letter of 15 December at page 85. The Tribunal is now said to be biased because of what it wrote to Dr Burek.
MR KNOLL: In view of the letter commencing at page 85, might I, in doing so, take your Honour to page 86, but just before doing so, to put it in context, page 78. Paragraph 4 of page 78 describes very clearly what the prosecutors were asking for from the Tribunal. The last sentence:
Generally, I believe that consulting us in order to organise a hearing date - rather than imposing one - would be a considerate approach.
She is saying, "Please be considerate towards my husband; he is suffering a serious illness." At page 86 - - -
GLEESON CJ: You really should not do that, Mr Knoll. You look at the immediately preceding sentence:
My husband and I are unable to attend any hearing and/or legal proceeding due to our medical condition.
She is asserting "her" inability, due to "her" medical condition, to attend a hearing.
MR KNOLL: I accept that, your Honour, she is speaking about both. On page 86, there is a suggestion that the Tribunal wishes to influence the doctor's opinion. I have already indicated, fairly, in my submission, that the question was a reasonable one to ask by the Tribunal member. The perception, however, goes a little further. In the last sentence of paragraph 3, which is at approximately point 25 - - -
GLEESON CJ: English, by the way, is her fifth language, not her third language, I see.
MR KNOLL: Yes, your Honour, but I do not seek to make terribly much of that.
GLEESON CJ: Well, it suggests a very high degree of competence, if I may say so.
MR KNOLL: There is clearly linguistic competence on the part of the second prosecutor.
GUMMOW J: No more from Dr Burek, then we get Dr Barich, do we not, on 5 January, page 93?
MR KNOLL: Yes, your Honour. But in between those two times, despite what Dr Burek has said, there was not a move of date until the Barich certificate, which is at 93. Sorry, I misspoke, your Honour. There is first a move of date, and the Barich certificate indicates that there is a referral to a Dr Pugic. There is no evidence as to whether or not Dr Pugic was then consulted. What does happen, however, is that the Tribunal defers the hearing to 13 February 2001, and that appears at page 94. Page 95 then indicates the state of mind of the Tribunal member as at 15 January.
GUMMOW J: Exasperation, I would imagine.
MR KNOLL: No doubt some exasperation, no doubt some frustration.
GUMMOW J: Yes, rightly so.
MR KNOLL: The question here is, is it appropriate, having had the medical evidence before her at the time, is it, indeed, open, having the medical evidence before her at this time, to make a statement, "This is a final offer of a hearing to you" - as set out in the box above:
She notes that there can be no impediment to attendance by either of you on the date selected.
So here we have a Tribunal member who has made up her mind that no matter what the medical evidence coming forward, these people are able to attend. Now, that, at this stage, was not open. There had been a request for consideration, given that the applicants had had to move house, that the first prosecutor had lost his job and had subsequently become severely depressed.
Medical evidence was proffered ASAP and they went to see the psychiatrist within the week. The psychiatrist entertained correspondence with the Tribunal member; provided his clear opinion as to when he needed to reassess. The Tribunal member was not too keen on waiting until the end of January. The applicants then obtained a further opinion, knowing that Dr Burek was away till 23 January from a local doctor, which confirmed the position, but there was then a deferral on terms that it is a final deferral, and with a rejection of the medical evidence then before the Tribunal without anything in medical terms to countervail it. So this is the beginning of where - and it is not, by any means, the end of what leads up to that period at the end of March, where, if one simply - - -
GUMMOW J: What is wrong with saying, at page 95, line 24, look:
If there are to be any further claims on medical grounds, the Tribunal will use its powers to refer you for examination by the Commonwealth Medical Officer.
MR KNOLL: Absolutely nothing wrong with that, your Honour.
GLEESON CJ: I am sorry, but how is a proposal to refer them for examination by the Commonwealth Medical Officer consistent with your proposition that the Tribunal had invincibly decided that there was no possible medical ground for a postponement?
MR KNOLL: Your Honour, the difficulty the Court has - and which I have, and, no doubt, anyone reading this letter has - is melding those two statements together.
GLEESON CJ: Well, there is another difficulty, is there not, and that is that we know that a further postponement was granted.
MR KNOLL: We do, and I am coming to that, your Honour.
GLEESON CJ: You are now on your ground C, to some extent - - -
MR KNOLL: To some extent.
GLEESON CJ: - - - as I would understand it, and, of course, you can move from one to the other as you wish, but in the criticism that you make of what the Tribunal was doing it cannot be left out of account that we are not here dealing with a plaintiff in a personal injuries case, who has a motive to get the case on and an award of damages in hand. We are dealing here with people whose interests lie, or may lie, in postponement of this as long as possible.
MR KNOLL: They may.
GLEESON CJ: Indeed, it may be in their interests if the final hearing never comes on.
MR KNOLL: Your Honour, it is not in their interests that the final hearing never comes on. They make very clear - I will correct myself, if I may - the second prosecutor makes it very clear: the first prosecutor is not in the picture. That really is very critical to this case.
McHUGH J: But he is in the picture. He signs document after document - - -
MR KNOLL: Clearly written by his wife.
McHUGH J: Well, it may be, but he signs the documents and sometimes, as in the document at 216, he is the first signature. Look at the contents of the documents. Ebsworths themselves could not have written better or stronger letters than what appears at pages 211, 212, 216, 222. I mean, they are very competent letters, and it is hardly surprising that the Tribunal, if it saw these letters - and I assume it did - would have had serious doubts about the claims that your clients were so depressed that they could not conduct their cases or come before the Tribunal.
MR KNOLL: Your Honour, the question of feeling frustrated about that - and I will leave aside for the moment the letter-writing issue - is not in any way with respect, conclusive of the - - -
McHUGH J: Of course, it is not, but when you add it all together, add all the pieces together, then you come to the conclusion that the applicants - or prosecutors, if you want to call them that - have deliberately lied about receiving the letter. Why was not the Tribunal entitled to draw the conclusion that they were just deliberately stalling? They did not want this case to be determined, or, at all events, did not want this case to be determined by this particular member of the Tribunal.
MR KNOLL: The answer to that, your Honour - - -
McHUGH J: The submissions have to face up to the fact that the Tribunal finds the facts and it lives in the real world.
MR KNOLL: In the real world, your Honour, these are two applicants, one of whom is very seriously ill, the other of whom has a mental illness concern and, it is accepted, writes loose letters - I am not cavilling with that in any way - who is saying that to have the opportunity to do the task far more than bang a letter out of a typewriter but to actually deal with some very serious issues which for them are life and death issues - - -
GLEESON CJ: What are the issues that remained to be dealt with, at this stage?
MR KNOLL: Yes.
McHUGH J: Again, if I can interrupt, it is an diversionary attitude aspect, to put it on that basis. The real issue was whether they ought to have turned up. You have get in more than say they could not conduct their cases. You have got to say they were so depressed that they could not turn up. That is the critical issue and your submissions will not face up to it. They just did not turn up and any problems they have flow from that fact. The question is, "Why did they not turn up?", and the Tribunal took the view, "Because they did not want to turn up".
MR KNOLL: Your Honour, with respect, the question that they just had to turn up asks the wrong question. The point in principle here is not whether they had an opportunity. The question is whether they had a useable opportunity, given the problem that was put to them.
McHUGH J: No, it all stems - if they had have turned up, they may have persuaded the Tribunal that they were not able to go on. They might have put reasons. There are other aspects of this case. You have begun at this end of the case but there are serious questions as to what the Tribunal does and what its powers are under the relevant section. You have not touched on those yet.
MR KNOLL: No, I have not, yet, your Honour.
McHUGH J: It is a matter for you the way you conduct your case but it is always easier to understand the relevance of facts when you understand the intellectual framework in which those facts are being urged. You are, in effect, at the moment saying that this whole matter is at large, that there is some principles of natural justice up in the air that apply to this case.
MR KNOLL: Your Honour, let me turn to the, I think, more fundamental issue that your Honour has just put to me so that I can deal with it.
GUMMOW J: Have you finished with ground A?
MR KNOLL: No, I have not, your Honour. I propose to return to it. Your Honour - and I put this in ground C but it equally applies to ground A and I refer at some length to the decisions in this Court in Ex parte H, 179 ALR 425, although that was, strictly speaking, a biased decision - an apprehended biased decision - I should speak accurately. The question was put squarely before this Court to what extent an administrative tribunal of an inquisitorial nature should be treated differently to a curial tribunal, that is a court - and as the Chief Justice put to me earlier - where a plaintiff has every - - -
GUMMOW J: No, what proposition do you want to get out of applicant H.
MR KNOLL: The proposition I wanted to get out of it is that the question in the case of an inquisitorial tribunal does not differ in one respect but does in another in a case such as this. The respect in which it does not differ is that the obligations to accord natural justice and, indeed, specifically where an issue of the credibility of something that an applicant is putting is in issue, is no less on an inquisitorial tribunal than it is for a court. I take the Court, specifically, to paragraph [30] on page 435:
Where, as in the present case - - -
GUMMOW J: These people turned up. You have got to understand in this case they turned up.
MR KNOLL: I appreciate that, your Honour, but the issue of principle here is identical in one respect.
McHUGH J: But is it? Section 426A of the Act says that:
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal: and
(b) does not appear before the tribunal . . . may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
Now, you have to face up to that, for a start. In terms, the power says that the Tribunal make take action:
may make a decision . . . without taking any further action to allow or enable the applicant to appear before it.
Now, what do you say about that?
MR KNOLL: Firstly, I say that section 426A is not a complete code as to the need to hear an applicant and in a circumstance where what is before the Tribunal is evidence that the reason the applicant is not attending, as invited, is a severe mental illness. The Tribunal must properly take that into account on medical evidence that is before the Tribunal.
McHUGH J: Not on medical evidence. The Tribunal is not bound to accept what doctors say.
MR KNOLL: That, squarely, is an important proposition because there was nothing in the material as to whether or not there was major depression to suggest there was not.
GLEESON CJ: Yes, there was. According to the finding of the Tribunal there was a pretence of not having received a letter notifying of an appointment for an examination by the Commonwealth Medical Officer.
MR KNOLL: That does not demonstrate mental fitness, your Honour.
GLEESON CJ: What does it demonstrate?
MR KNOLL: It demonstrates that the Tribunal found that they intended not to come, according to the Tribunal.
GLEESON CJ: Yes, but why would they have had that intention?
MR KNOLL: Your Honour, I cannot answer that because the point at the end of the day is the basis for finding that was, (a), flimsy, and (b), infected by the issue that I am only part way through, the Tribunal not dealing with the mental illness barrier to them coming and putting their case.
GLEESON CJ: The Tribunal's attempt to deal with what was said to be a mental illness barrier was to subject them to examination by the Commonwealth Medical Officer and if the Tribunal's finding that they had received the letter was correct, then the inference is that they were deliberately frustrating the Tribunal's attempt to examine that issue.
MR KNOLL: Your Honour, the Tribunal is not in a position to say that deliberacy is the - may I reframe? I will just withdraw that and I will reframe the proposition. That is testing the actions of the applicants by the standard of the mentally fit and it ought to be assessing the conduct of the applicants by the standard of the mentally unfit.
GUMMOW J: Why?
McHUGH J: You are assuming a major premise.
MR KNOLL: In a circumstance where the Tribunal has before it consistent uncontroverted medical evidence of lack of fitness and the Tribunal has gotten understandably frustrated that on the first attempt to send them to a CMO they were not there, it is one thing to launch in - and as the Chief Justice asked me earlier to infer that they did not turn up and make them turn up or say, "This is it. You turn up to a CMO. Forget this excuse and be properly assessed". It is another to say, "I am taking away your rights. This is a final decision. You will not have the right to make application for refugee status."
GUMMOW J: What rights have been taken away?
MR KNOLL: The right that is being lost here - and this is the core issue of principle here - is the right to present to a tribunal that they qualify for refugee status in Australia as at the present time. They have not had the right, or the opportunity, rather, to put that. Their right is an opportunity to put that in a useable form. That is what has gone. That is the issue of principle here. The issue of principle, squarely put, is that in a tribunal where you are not legally represented, the consequence, procedurally - now, this is in addition to the point about your right to be able to persuade a tribunal that you are in fact a refugee - but the issue, procedurally, is that the Tribunal, here, is making a decision about their capacity to attend in the face of consistent uncontroverted medical evidence and what lies against that is their failure to turn up to the first CMO appointment.
McHUGH J: So what? Even if you are right - and accept it for a moment - does it not simply mean that the Tribunal made a mistake of fact? How is that jurisdictional error?
MR KNOLL: Your Honour, in Ex parte Aala and subsequently, this Court has accepted that a breach of the principles of natural justice can give rise to such a jurisdictional error.
McHUGH J: That is true.
MR KNOLL: And that is where I am at.
McHUGH J: Yes, but you are at a different level from Aala. In Aala the breach was on the facts as proven. Here you have these facts before the Tribunal which it evaluated and came to an adverse conclusion.
MR KNOLL: And the question is, did the Tribunal - and I think this is where they interweave a little bit, so, your Honour, I apologise if I am confusing. I will try it the first way and if I am not clear I will give it another shot. The proposition here is the Tribunal is finding - your Honour put it squarely - "You are lying about your fitness". Has the Tribunal ever put that to them?
McHUGH J: No, I did not say they were lying about their fitness, I said lying about receiving the letter and stalling.
MR KNOLL: All right, the Tribunal puts it this way - - -
McHUGH J: You have got to face up to this fact: your clients may be seriously ill - may have been at the time. Let us assume, in their favour, that they were, but it would not be the first time that people have put it over psychiatrists for months and years at a time claiming depressive illness. We had a case in the criminal courts not so very long ago to that - where there was a wealth of evidence that somebody was engaged in a drug conspiracy, notwithstanding claims of being unfit. So the Tribunal is not bound to accept every statement from a doctor. The doctor is not there. These are administrative matters. You are not in a court of law when you are before the Tribunal. It has to make its best judgment on all the material before it.
MR KNOLL: But, your Honour, the difficulty with that is that before the Tribunal gets to the point of making a judgment it has to act in a procedurally fair manner and the Tribunal, in this instance, did not act in a procedurally fair manner before it got to that point of judgment. There are three reasons and three grounds why it did not. The one we are dealing with at the moment relates most principally to the March 5 letter and the non-attendance at the CMO, who was a general practitioner, to whom they were referred.
The principal problem with the proposition that the Tribunal is entitled to reach that decision is that the Tribunal reaches that decision with three infections built in. The first infection is that the Tribunal operates on the necessary premise that they are able to make and form an intention to come or not come. The second infection is that the Tribunal operates on the necessary premise that it does not have to put to them that they are being false either about the March 5 letter or, far more importantly, their intention to come or not come.
The third infection arises from the Tribunal being on notice that they apprehend their credit is gone with the Tribunal before they even get there and proceeds, nonetheless.
GLEESON CJ: Now, as to the first of those three matters, are you suggesting that the women who is the author of the letters that we have been reading was incapable of forming an intention to attend at the premises of the Tribunal?
MR KNOLL: No, I am saying that the first prosecutor was incapable.
GLEESON CJ: Because, you said, "they".
MR KNOLL: Your Honour, I slipped in the same place I slipped before and I accept that.
McHUGH J: He was signing these letters as recently as 14 March. There is one at 222. He is the first signatory to the letter. He must have understood that, one assumes.
MR KNOLL: The reality of the position is that she was preparing the letters. She can put something to her husband and say, "Sign it".
McHUGH J: That may be but he signed it. She must have thought he was fit enough to sign it. After all, he did not sign every letter. Some she wrote herself.
GLEESON CJ: Mr Knoll, there is not a word of suggestion in the psychiatrists report that these people are so ill that they are incapable of forming an intention to attend at certain premises.
MR KNOLL: It is not that detailed, your Honour.
GLEESON CJ: A person who is in that condition would probably be incapable of getting out of bed.
MR KNOLL: I do not accept that, your Honour, and nor can we accept that, medically.
GLEESON CJ: You pressed the submission that the first prosecutor was incapable of forming the intention to attend at the Tribunal's premises.
MR KNOLL: No, your Honour, I do it differently. I say that the Tribunal was not in a position, firstly - premise number 1 - to decide that he did not have the intention - that he had the intention - - -
McHUGH J: Well, at least he was fit enough to go to a doctor.
MR KNOLL: Yes.
McHUGH J: Now, if he could get to a doctor, why could he not get to the Tribunal?
MR KNOLL: Because that is not the question?
McHUGH J: Yes, it is. Or at least the Tribunal might have taken the view it was. If he could get to a doctor, why could he not get to the Tribunal?
MR KNOLL: I can only come back to what is involved in getting to the Tribunal. To get yourself to a doctor's appointment, to travel around on local transportation is an entirely different burden to conducting an international investigation and putting your case to a tribunal.
McHUGH J: No, that is not the issue. You keep diverting from the issue. The real issue is why did your client not turn up. The Tribunal took the view, because they were stalling.
MR KNOLL: And said, expressly, "They had no intention to come". If my first premise falls away the second is enlivened. The Tribunal forms the view that the applicants have no intention to come. Let us take that premise for a moment. We have enough propositions before this Court and the Federal Court prior to the introduction of Part 8 that say if you are going to say this person is lying, and accepting that credibility is one of the fundamental aspects of determination of refugee status, if you do not believe the applicant there is no way they are going to be accorded refugee status. If you are saying, "You people are being false" - that is the proposition from the Tribunal - the Tribunal has got to put that to them.
GLEESON CJ: Do you mean the Tribunal might not have indicated that it was considering the possibility that your clients were stalling for time?
MR KNOLL: No, the Tribunal did not indicate that you intend to not come for the foreseeable future to a hearing, to the applicants. That is the important question, not the detail that lies underneath which says, "You did not intend to come to the doctor and you are not going to simply turn up". The important question of principle here is did the Tribunal say - there is the distant cousin relationship to Aala - did the Tribunal say, "You have no intention for coming for the foreseeable future. What is wrong with my putting that? You are actually fabricating in relation to your intention." Never put that to them.
They had no opportunity to respond to that. So, even if I am quite wrong on the mental illness aspect - and I do not lack a sense of how far uphill I am pushing the snowball - there is the second proposition here and that is a very important one. Here we have a tribunal that says in almost Shakespearian terms, "You are being false unto thyself". Never puts it to them.
McHUGH J: Yes, but the critical issue was whether the Tribunal should proceed to a hearing on the day on which it did.
MR KNOLL: Without first putting to them - - -
GUMMOW J: No, just look at page 112. It is all in block letters there:
IF YOU DO NOT ATTEND THE HEARING AND A POSTPONEMENT HAS NOT BEEN GRANTED, THE TRIBUNAL MAY MAKE A DECISION ON YOUR CASE WITHOUT FURTHER NOTICE.
Not make a decision on this ground on that ground, make a decision on any ground.
MR KNOLL: That is the problem.
GUMMOW J: No, it is not the problem at all, in the circumstances of all of this.
MR KNOLL: I hear where your Honour is coming from and, with respect, I cannot put it any differently than say if you are saying in general broad terms - in fact, let me come to the - - -
GUMMOW J: I am not saying anything in general broad terms, Mr Knoll. I am saying that questions to the content of natural justice vary from case to case and circumstance to circumstance and in the circumstances in which the notice at page 112 were sent out it is pretty clear what the risk was of not turning up.
MR KNOLL: If you would just bear with me a moment, your Honour, I have got some notes on the issue.
GUMMOW J: The whole idea of them being invited to turn up is to say whatever they want to say.
MR KNOLL: Might I take the Court to two decisions, albeit not of this Court, in relation to what it is the Tribunal has to say to my clients and whether this is the solution or indeed part of the problem. The first of those is the decision of the Full Court of the Federal Court in Minister for Aboriginal and Torres Strait Island Affairs v Western Australia [1996] FCA 1509; 149 ALR 78, particularly at page 95, line 2 through line 5.
GUMMOW J: I have got it in the Federal Court Reports. Not being in Canberra, we have to scrounge these authorities for ourselves.
MR KNOLL: Your Honour, I actually substituted all my Federal Courts for Australian Law Reports.
GUMMOW J: Yes.
MR KNOLL: Perhaps I will just read the passage. In fact, I may be able to find the cross-reference for your Honours in my written submissions, if you will bear with me a moment.
GLEESON CJ: This actually demonstrates the value of media neutral forms of judgment with paragraph numbers, does is it not?
MR KNOLL: Yes, it does. If your Honour will bear with me just a moment I will try and locate it.
GLEESON CJ: Yes.
MR KNOLL: Your Honour, I think - with respect, I am not sure, but I think the reference in the FCR is 57 and I will read the passage and we can check if that is so.
GUMMOW J: Thank you.
MR KNOLL: The sentence begins the bottom on mine of 94:
But it was not necessary for the State and Mr and Mrs Douglas to demonstrate the effect in fact of the material that was not disclosed to them. The courts, when faced with a denial of natural justice, do not undertake an evaluation of the chance that it may not, in any event, have altered the outcome, save in an exceptional case where that is obvious, for example because only one conclusion -
I would interpolate "on the merits".
That is not the case here. It is not necessary, as his Honour held, for applicants for judicial review to show that the matters which they had not had the opportunity to contradict did in fact work to their prejudice.
What they did not have an opportunity to contradict was a finding as to their falsity. Now, I come to the second aspect of this and that arises in this particular instance in the Arcadia Case. Your Honours might have a set of unreported - - -
GUMMOW J: Now, what was the procedural history in this Aboriginal Affairs Case. The proposition there is undoubtedly true. We apply it in Aala, but what was the factual procedural circumstances of this litigation in the Aboriginal Affairs Case?
MR KNOLL: Your Honour, it related to a report called the Sullivan Report, a specific document that was not put but in the finding of intention, it is not a document, ultimately, that one puts. It is a formation of a view in relation to intention since - it is a different nature of a fact-finding exercise when one is finding intention. But, the principle is identical, whether one is finding about non-disclosure of a document or non-disclosure of a fact that is found in relation to intention.
The second case is an unreported decision from the Western Australia Supreme Court. I trust your Honours have it. It is from the Internet service, the case of Arcadia Amusements & Vending Pty Ltd v Gaming Commission of Western Australia. That was a case, also, where a document was not put and I can only but restate the submission that where intention is there it is not a matter of the document but rather a finding of falsity.
May I take the Court to the paragraph number, fortunately, in this instance? It is paragraphs [10] and [11]. On my print it is at the bottom of page 2. Paragraph [10] indicates that the plaintiff challenges - and just by was of background: there were two hearings here in relation to the fitness of a person for a gaming licence. In the case of the first hearing a particular document was withheld that cast doubt upon the truthfulness of what the applicant would be doing and thus fitness as a person suitable for a gaming licence.
A certiorari was sought in relation to the Gaming Commission's non-disclosure of the basis of that falsity finding. There is a sentence there - it is the second sentence in para [10]:
Its grounds for seeking that order were that the Gaming Commission had failed to afford to the plaintiff the opportunity to respond to allegations made to the Gaming Commission by the Federal Police in the report sent to the Gaming Commission by the Bureau of Criminal Intelligence. It said that this failure gave rise to a denial of natural justice.
What then happened was that that decision was quashed and subsequently the substance of the adverse allegation was put to the applicants and they challenged again but they lost because the substance of the allegation had in fact been put to them. The proposition that I come to and it is not dissimilar to matters - and I will not go at great length - aired in Percerep's Case to which I refer at length in my written submissions.
GUMMOW J: What are the procedures of this body in this Western Australian case?
MR KNOLL: Your Honour, the fullness of the procedure is not set out in the case reports - - -
GUMMOW J: It seems to be all conducted by correspondence, does it not? I do not think you would go down to the Gaming Commission and have a public hearing or a private hearing.
MR KNOLL: Your Honour, I cannot inform the Court and I do not want to say the wrong - - -
GUMMOW J: That it right. It does not seem to have any step in it that involves anything like this notice that was given here.
MR KNOLL: The third place - I think if I can answer your Honour's question this way - and your Honour will well remember Kurtovic 92 ALR.
GUMMOW J: Yes.
MR KNOLL: I am sorry, your Honours, I do not have the FCR cite for the relevant page, but if I might read the relevant section. It appears at page 124 ALR at approximately point 18. I will read the relevant passage.
Counsel for the appellant submitted -
in this case a confidential document -
that the confidential nature of the documents, and the element of risk to the public interest in their disclosure, rendered it inappropriate in the circumstances not to make the material available to the respondent. Counsel for the appellant accepted that any difficulty as to preservation of confidentiality might have been met by making the material available not to the respondent himself, but to legal representatives chosen by him. But counsel submitted that the duty to adopt this course would arise only after the respondent had decided to make further submissions.
This line of reasoning is plainly inconsistent with what was said by the High Court in Kioa v West -
and I will come back to that. But the proposition here is that you cannot just say to an applicant, "Turn up" when what is on your mind is that the applicant is producing falsity. You need to actually put the applicant fairly on notice of what they are coming up against, in order to be fair.
GLEESON CJ: One way of doing that is to say, "I want to check up on you. I want you to go to the Commonwealth Medical Officer".
MR KNOLL: Yes, your Honour.
GLEESON CJ: That puts you on notice, does it not, that you are under suspicion.
GUMMOW J: Another way is to ring up the doctor, some of the earlier doctors, to which violent objection was then taken by one of your clients, a great flurry of letters. They knew they were being checked up on.
MR KNOLL: I accept that that is a mechanism for the Tribunal to check up.
GUMMOW J: No. No, but your client knew about that.
MR KNOLL: Yes.
GUMMOW J: Your female client certainly knew about it.
MR KNOLL: Yes.
GLEESON CJ: They knew that there was grave suspicion attaching to their claims that they were unfit to attend a hearing.
MR KNOLL: I accept that. At the point where they have provided, even after the grave suspicion was aired to them, "I am considering finding that you are fit, any way" putting it at its highest, and I am not sure that is what the Tribunal said, frankly: "I am going to go so far as to find that you have no intention of coming to a hearing in the foreseeable future despite your manifold protestations that what you want is the chance to recover and then come and put your case."
It is one thing to say you have no intention of coming to a CMO. It is another to say you are false about your very intention to put your case here. That is a very, very serious attack on credibility.
McHUGH J: This is a remarkable proposition that you are now seeking to put. It amounts to this: your clients are told that if they do not turn up the Tribunal may proceed to give a decision. Then you say they cannot proceed to give a decision unless they give you an opportunity to say that they are not deliberately turning up.
MR KNOLL: Write to them.
McHUGH J: Exactly, write to them. That is what you would have to say. So, then, you postpone it again. Now, what, the matter just goes on ad infinitum?
MR KNOLL: Certainly not, your Honour, nor is that the proposition which I put before the Court. The proposition that I am putting before the Court is that it is insufficient to become frustrated with problems in the process and then say to an applicant, "That is it. I am making a decision. You have not turned up to the CMO. It is clear to me that you have been false about your intention to turn up" but put that - the first time that goes to the applicant about actual falsity of intention, deliberate misleading of the Tribunal in the decision itself. That is not fair, in the simplest of terms. Would you excuse me a moment, my instructing solicitor has something. There is also an inference, your Honour - - -
McHUGH J: Well, it might be said it is irrelevant, that the Tribunal could have just gone straight ahead and dealt with your clients.
MR KNOLL: In general circumstances, your Honour, that might be so. In circumstances where the Tribunal is squarely on notice including two letters - a certificate and a subsequent letter from a psychiatrist - indicating that the right process is to reassess these people, it is respectfully submitted that that is not right. That to simply give what would ultimately be nothing more than a bald opportunity does not answer the problem at hand.
McHUGH J: Well, we are dealing with questions of fact.
GUMMOW J: That is right.
McHUGH J: We are dealing with questions of fact. We are not sitting here to decide these questions ourselves. It is a question of what was open to the Tribunal.
GUMMOW J: We are dealing with them at some length too, if I may say so.
MR KNOLL: I acknowledge that, your Honour. There is - - -
GUMMOW J: Now, how far are you progressed? It is a 12.15.
MR KNOLL: Yes, your Honour. I have jumped around a bit.
GUMMOW J: Of course you have, yes.
MR KNOLL: Could you give me a moment to just check my notes, please?
GUMMOW J: Yes.
MR KNOLL: Your Honour, it would not be fair to my clients' case if I did not indicate I am approximately halfway through. Might I proceed?
GLEESON CJ: Yes.
MR KNOLL: Your Honours, I will just summarily direct the Court's attention to the documents the Tribunal did have before it and I will move on from that because it just simply closes out the preceding point in relation to the intention of the applicants because in order to determine that someone is being false when they have actually said to you, "Look, these are my sincere intentions. We have been through a lengthy process. We have been to the delegate; we have been to a Tribunal hearing before; we have succeeded in the Federal Court; we have succeeded on a Federal Court appeal" - - -
GUMMOW J: With legal advice at that stage?
MR KNOLL: In the Federal Court context, yes, but not prior.
GUMMOW J: Yes.
MR KNOLL: There was a barrister who appeared for them, I believe, in the Federal Court. I cannot presently recall - - -
GUMMOW J: At trial and in the Full Court? It would seem to be so from the judgment we have copies of.
MR KNOLL: Yes. May I have a look?
GUMMOW J: Yes.
MR KNOLL: Your Honour, before Justice Tamberlin, Mr Killalea appeared for the applicants.
GUMMOW J: Yes. Well, he is a well-known solicitor in this area.
MR KNOLL: I am sorry, your Honour, I just do not know the gentleman. And the same gentleman on appeal.
GUMMOW J: Yes.
MR KNOLL: The proposition related a moment ago to the question of putting falsity to the applicants, in weighing up to what extent there is a burden on the Tribunal to put falsity, and I think that really is the question I have just been asked. One has to look at what the applicants have previously put in relation to their intentions, to get it into context. The first place one goes is page 67 of the application book, and there are four such places, your Honours. I can indicate that in advance. It appears at approximately lines 20 to 30. I have been there before but I want to tie it into another issue. The applicants are saying that they will obtain an assessment ASAP and they are asking for an adjournment in the meantime. Then at page 86 of the application book - - -
GUMMOW J: That is where the phrase "Put the hearing on hold" comes from.
MR KNOLL: Yes. In the meantime while they are seeking specialised assessment, ASAP. At page 86, the last line of paragraph 3 at line 25, the second prosecutor says, in relation to her husband:
He will need, on his recovery, to be given the opportunity to obtain such information.
Then on 7 January - this is 15 December - your Honours can turn to page 91, at approximately paragraph 40 - and this is one of the passages, and I do not know whether your Honour was previously referring to strident letters, but the substance of what is put is important. The second sentence says, having first indicated that the prosecutors were on medication for psychiatric problems - - -
GUMMOW J: It was the first paragraph I was referring to.
MR KNOLL: I recall that, your Honour. I am just at the second now, paragraph numbered 2.
GUMMOW J: What would have been wrong with the Tribunal checking out what the doctors were saying?
MR KNOLL: Your Honour, I make no point about that.
GUMMOW J: All right.
MR KNOLL: And your Honour will appreciate the judgment call in doing so. But I do make the point about numbered paragraph 2.
McHUGH J: Mr Knoll, you are taking a lot of time and you will not face up to the fact that there was evidence upon which the Tribunal could act. It does not matter what other evidence was against it, and that it what you are seeking to do, it was a matter for the Tribunal. I mean, you are in the High Court of Australia and the time of this Court has been taken up on factual issues which really should not be before the Court. In fact, the whole of the transcript of this case should be sent to every member of Parliament to show what this Court has to put up with because of the Parliament's refusal to allow this Court to remit these matters to the Federal Court.
MR KNOLL: Your Honour, I listen carefully to what has been said and I will move to ground B.
GLEESON CJ: Yes. I was just looking at your written submissions. Your paragraph 1.1 under the heading "Issues" really ought to be - I have made a mental note to elaborate it myself in one respect. I think your paragraph 1.1 falls into two parts: what you have there and then what you have in paragraph 40. I think they are the two aspects of denial of procedural fairness that you have argued before us.
MR KNOLL: Yes, your Honour.
GLEESON CJ: Now, you have covered both of those and you are on to B.
MR KNOLL: I propose to move to ground B.
McHUGH J: What you have to understand, and I am not sure that you appreciate, you have almost 20 pages of written submissions and annexures, plus the appeal book, with references. We do not come into Court with not having looked at this material, and you are just going over, taking us to material that is referred to in your written submissions.
MR KNOLL: Your Honour, I acknowledge what is being put to me and I take the Court to the material previously accepted on a confidential basis.
GLEESON CJ: It is folio 83, is it not?
MR KNOLL: That is correct, your Honour.
GLEESON CJ: Or, perhaps folio 83, considered in the light of that folio 111, I think it is.
MR KNOLL: May I just check, your Honour? Yes, your Honour. Might I take the Court, first, to folio 83. I take the Court to the second paragraph and, in particular, ask the Court to pay attention to the third and fourth sentences, immediately before the fifth sentence that was adverted to earlier. Respecting the confidentiality determination, I will not read them out aloud.
GLEESON CJ: Yes. I am right in thinking, am I not, that you get more information about what is meant by the expression in the third sentence of that paragraph by looking at folio 211, the last paragraph on the first page?
MR KNOLL: That is correct, your Honour, and that is where I would take the Court. There is a statement there of a person who is in a position that one would normally expect had creditworthiness attached to it, I will put it like that if I may. The statement made beginning with the words - I will go down, in the last paragraph, fives lines, "I believed the actions of". I will not read further because it would cause an issue. That statement particularly - and then one goes two lines down, the sentence beginning "Moreover". I just will not read it out aloud - goes over to the next page - are unquestioningly adverse to the credit of the applicants before this Court. There should be no doubt, whatsoever, that these are very serious statements about their credibility.
The problem is simply this: if a statement is received by a tribunal from a volunteer third party and it is not put to the applicant before the tribunal, who is seeking administrative justice, the applicant does not have an opportunity to respond or explain. Whether it is at hearing or prior to hearing, an opportunity to respond or explain cannot be assumed to be worthless.
GUMMOW J: I realise all of that but you have to face up to section 424A, have you not?
MR KNOLL: Section 424A, your Honour, does not resolve the present problem, and I will just turn to it if you will bear with me for a moment. Section 424A provides that the Tribunal, for certain documents that constitute disclosable information, must provide:
particulars of any information that the Tribunal considers would be -
in this instance -
part of the reason, for affirming the decision that is under review -
and part of the reason is that the matters put are not credible; that the applicants are not credible.
In the present instance, looking at my learned friend's submissions, there is a reliance placed by his client on subsection (3)(c), that is that the information "is non-disclosable information", and that is defined in section 5 of the Migration Act to mean:
information or matter:
. . .
(c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence.
I will not re-ventilate, your Honour, but I will simply direct the Court's attention to paragraphs 13 to 15 of my reply submission.
GUMMOW J: But is not the point, really, that 424A, as it were, controls what otherwise would be procedural fairness considerations and that is why it is put in there?
MR KNOLL: Your Honour, if that were so then decisions relating to proper disclosure of evidence or the state of evidence before a tribunal - and I refer in a general sense to both Aala and Ex parte H.
GUMMOW J: The Parliament has balanced the respective interests and it has come down in favour of the confidentiality owed to the third party.
MR KNOLL: If the information is non-disclosable, then the particulars are not to be disclosed. What you come up against here, your Honour, is a slightly different question and only slightly. The submissions I make respect the existence of section 424A and depend upon, firstly, the proposition that it is not a code to exclude fairly putting an applicant on notice of a third party submission that goes to an important issue of credit.
GUMMOW J: Well, that is the question.
GLEESON CJ: Is this non-disclosable information?
MR KNOLL: That is not conceded, your Honour.
GLEESON CJ: No. Well, what have you to say about it?
MR KNOLL: What I need to say about this information goes back to the cases in relation to whether information is non-disclosable, and my friend has correctly pointed the Court to those.
May I take the Court to the most recent of them which is Hitchcock's Case and, in the volume provided by my solicitor, it would be at tab 15. I do not know if the Court has kept them in the same way.
GLEESON CJ: Now, what is the proposition for which you cite this?
MR KNOLL: Hitchcock at present is - shall I hand up some copies?
GUMMOW J: It is not a case on 424A.
GLEESON CJ: We have the case but what is the proposition for which you are citing this - - -
MR KNOLL: The proposition is that to be non-disclosable information under section 5, the Tribunal must be satisfied that the disclosure would found an action for breach of confidence.
GUMMOW J: Yes, I see that. There was an express stipulation of confidence in this disclosure.
MR KNOLL: Yes, there is, and not every person who claims a duty of confidence is entitled to one nor is it so that a circumstance where a person claims confidentiality necessarily means that the entirety of what is put must be kept away. Now, the proposition which I have put before the Court in written submissions is not that the document or the identity of the writer must be disclosed but that the substance of the allegation as to their creditworthiness must be disclosed and that does not fall within the protection, your Honour, because the point of the protection of non-disclosable information - - -
GUMMOW J: To make that good, you would have to set out specifically what you say - I do not suggest you do it now - could be disclosed which would not violate the seal of confidence that this writer placed on this information.
MR KNOLL: Yes, your Honour, and I acknowledge that.
GUMMOW J: And that has not been done today?
MR KNOLL: Not yet, no.
GUMMOW J: Because until you do that your submission cannot really be evaluated.
MR KNOLL: No, your Honour. I had that difficulty because I only received this back this morning as I came to Court.
GUMMOW J: Yes, I am not criticising you but that is it, I think; that is the circumstance you have to grapple with.
MR KNOLL: Quite clearly, your Honour. The sentences in the page marked 211 and those marked 83 to which I adverted earlier, should I re-highlight them to the Court?
GUMMOW J: Yes.
MR KNOLL: And you will see that, again, that sentence in 211, "I believed" at the bottom of the page - coupled with - and I will have to use one word to best describe it - the fourth-last word on the last line of that page, going on to the next page, would be taken by anyone to say, "Look, give real credit to what I'm saying because I'm conscious of what I'm doing", and what this person was saying, conscious of what the writer of this letter was doing, was casting a very serious aspersion on the credibility of my clients. The nature of that allegation, without identifying the identity of the person or the context set out above on page 211, surely is disclosable information, particularly when the Court takes into account that what is being balanced is the desire for confidentiality of the writer of the letter against the rights of the applicants who are the party before the Tribunal to put to the Tribunal that in fact they are creditworthy.
GLEESON CJ: Now, you will have an opportunity to come back to this matter at 2.15 if you desire to do so.
MR KNOLL: I thank the Court.
GLEESON CJ: Do not assume that you will have any opportunity to come back to it later than 2.15.
MR KNOLL: I am sorry, your Honour, should I stop?
GLEESON CJ: No, go ahead. I thought you indicated a few minutes ago that you might want to think further about this matter because you only saw this letter again this morning.
MR KNOLL: I would appreciate the opportunity. I felt that I was pressed to put the entirety of what I had to say now.
GLEESON CJ: No, you have the opportunity. What we are saying, enjoy your lunch.
MR KNOLL: That comment, your Honour, stops me somewhat. Thank you. May I take the Court, please, to Hitchcock because there is an important balancing test to apply in determining to what extent confidentiality must be preserved in a document and, in particular, to the judgment of Chief Justice Spigelman. Justice Haddon goes through the material at some length and Chief Justice Spigelman identifies at some length the conditions originally that come from the case of Coco v A.N. Clark (Engineers) Limited (1969) RPC 4167. I am sorry, I do not know what RPC stands for.
GUMMOW J: Reports of Patent Cases.
MR KNOLL: Paragraph 25, your Honour.
GUMMOW J: It is a fairly well-known case. It talks about the necessary quality of confidence.
MR KNOLL: Yes, your Honour.
GUMMOW J: Given the nature and the occupation of this confidant, one could well understand a lot of material having the necessary quality of confidence that would not be so between two ordinary people out in the community.
MR KNOLL: Yes. At paragraph 29, Chief Justice Spigelman deals with the third condition, that is of detriment, in Coco, with which your Honours are very well familiar. Chief Justice Spigelman casts doubts as to whether or not there is a requirement. There is no decision on that point, but casts some doubt on it.
The proposition that is put here is that where there is at least some degree of lack of clarity as to whether detriment must be demonstrated - step 1 - and step 2, where the - - -
GUMMOW J: The detriment is pointed to by the confidant, is it not, in the course of the letter?
MR KNOLL: The aspect that causes, the possibility of detriment - - -
GUMMOW J: Detriment need not be something that immediately and easily sounds in money which is why you can get an injunction - one reason why you get injunctions.
MR KNOLL: Clearly.
GUMMOW J: Detriment can be quite a difficult matter of reducing to base terms.
MR KNOLL: Yes, that is certainly appreciated. It does, however, only marginal damage to the proposition I am coming to. The proposition I am coming to is that in looking at 424A, assuming for a moment that it is a code, which I do not accept for a moment, but even assuming that 424A was a code - - -
GUMMOW J: "Code" is a misleading word but, on your submission, you will not be giving effect to it according to its terms, it seemed to me, because you will be reading something into it from outside which cuts down its operation and its evident purpose. Its evident purpose - one of them - is to assist provision of information to the Tribunal on a confidential basis.
MR KNOLL: I would respectfully submit that its eminent purpose is to provide very clear information for the Tribunal of particulars of information that would cause the Tribunal to decide a matter adversely to an applicant and that in fact we are allowing the exception to override the rule here. The third subsection in relation to non-disclosable information is an exception provision only. It is not the guts of it, nor the purpose of it - if you do not mind my using a momentary vernacular. The purpose of 424A, and it is clear on the face of the legislation, is to provide to an applicant particulars of information which would support any part of a decision adverse to the applicant. There is an exception for non-disclosable information.
GUMMOW J: That is right.
MR KNOLL: Viewed, your Honour, in that context, one has to see to what extent the exception needs to be given play so as to fall within the purpose of the section, that is, give the applicant the particulars on which an adverse element of the decision might be based. What happened in this case is that none of the allegations put against the applicant, no particular of any of them or any part of these letters was put to them for answer - none of it. To this day, they do not know the contents of what is there.
GUMMOW J: You are going to tell us after lunch how it should been extracted and massaged in some permissible way.
MR KNOLL: I thank your Honour for the opportunity.
GUMMOW J: Yes. Now, what do you say about ground C? You have touched on it to some extent.
MR KNOLL: I did, your Honour. I did. Let me take your Honour to the evidence and then briefly to the arguments in relation to ground C to the extent not already touched on. To a large degree I have dealt with it.
GLEESON CJ: This is a claim of apprehended, not actual bias?
MR KNOLL: That is clear, your Honour.
GLEESON CJ: Yes.
MR KNOLL: I will not deal with the test. That is dealt with in both my friends and my written submissions. I will go directly to the evidence. In particular, the question is not whether the apprehension by the second prosecutor was reasonable but whether, having apprehended bias, that apprehension was reasonable in an objective sense and I accept that as the ground work. In the letter of 18 January 2001 at approximately point 10 - - -
GLEESON CJ: By the way, are you talking about bias in the form of animus, bias in the form of self-interest or bias in the form of prejudgment?
MR KNOLL: Might I just take a moment to pause?
GLEESON CJ: You can think about that over the lunch hour, too, if you wish?
MR KNOLL: May I take that opportunity, your Honour?
GLEESON CJ: Yes.
MR KNOLL: Just bear with me and I will make a note. I understand the question, your Honour, and I will accept the opportunity to think it through. The letter of 18 January at page 98, the paragraph beginning with "b)" is where I would take the Court, first.
GLEESON CJ: Yes.
MR KNOLL: What the second applicant is asking for, and clearly this argument, by the way, is built on the premise that the proposition your Honours put to me earlier that the second applicant was clearly mentally fit is correct, so I am working from the premise that I am wrong on the mental fitness issue. The second applicant is saying, "With or without our current medical condition we are unable to prepare our case in the absence of proper access to our file". So, accepting the premise your Honour put to me earlier - in fact each of your Honours had put to me earlier - that there was some knowledge that the credit issue was on the line, the second prosecutor is saying, "Look, we just need to see everything so that we can deal with it". In paragraph 3 she indicates her view as to what the consequence of all that is.
GLEESON CJ: That is the paragraph beginning, "This is not a game"?
MR KNOLL: That is the one. I will not read the entirety of the paragraphs, in part because I am starting to lose voice, but it is reasonably clear that she is concerned with consequence and in weighing the importance of making a disclosure of an attack on credit that has been made in circumstances where the applicant does not know the specific attack that has been made on the credit, or indeed the assumed creditworthiness of the writer of the letter, the consequence to the applicant of not being able to respond is a serious one. That is as far as I take that point.
GLEESON CJ: We are going to adjourn in a moment but I do not understand what purpose you seek to make of this letter to Mr Nygh.
MR KNOLL: Mr Nygh was the principal member.
GLEESON CJ: I know who Mr Nygh is or was but - - -
MR KNOLL: The purpose is she is saying and what follows next is that, "I apprehend that the member appointed is not going to give us a fair trot because she does not trust our creditworthiness".
GLEESON CJ: She says that?
MR KNOLL: That is, if you like, my paraphrase of what is coming from the second prosecutor.
GLEESON CJ: What has that to do with the question of whether the member is biased?
MR KNOLL: It has to do with whether there is a reasonable apprehension that she is biased.
GLEESON CJ: Yes. What has it to do with that?
MR KNOLL: If the member has - and this would fall into the third category your Honour put to me of bias, momentarily, and can I be tentatively there?
GLEESON CJ: Yes.
MR KNOLL: If it is the prejudgment category and there is a prejudgment before the making of the decision, and this is at a time period before the letter "please go to the CMO" position. That timing is important. But, if there is a prejudgment at that earlier stage, the creditworthiness of the applicants is, to put it simply, shot, then there is a reasonable apprehension that whatever the applicants might thereafter put is not going to be accepted because their creditworthiness is shot.
GLEESON CJ: This is not the self-levitation theory of judicial disqualification, is it? You insult the judge and then say, "A reasonable bystander would think that you now have a bias against me".
MR KNOLL: No, your Honour, that is not what I am going to put to the Court.
GLEESON CJ: All right. We will adjourn until 2 pm.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.01 PM:
GLEESON CJ: Yes, Mr Knoll.
MR KNOLL: Your Honours, I am going to be very brief. I just want to deal, if I may, with the two questions I was left with before lunch, and if I may try to tie them together. The first is, in terms of categories, the proposition relates to prejudgment as to credit, and the two documents which make the relevant allegations are, of course, the two documents that are at present confidential. What we say is that the Tribunal saw folio 83 at a time prior to the matter being remitted by the Full Federal Court. Folio 211 it saw before it made its decision.
GUMMOW J: Can you just state that chronology again?
MR KNOLL: Yes, please. Folio 83 is dated a date prior to the remitter by the Full Federal Court. Folio 211 is subsequent to that, but prior to the Tribunal as second constituted, making its decision.
GUMMOW J: Yes, thank you.
MR KNOLL: That is just the date, at the moment. The two documents make allegations which arise from steps taken by the prosecutors in relation to something else. Based on the prosecutors taking those steps, the negative aspersions as to their credit were cast. They are reinforced in the two documents. The proposition that I would put before the Court - and I would like to come momentarily to your Honour's question as to how the particulars might be revealed - and I will be brief - is that, whether consciously or subconsciously they may have influenced the Tribunal's decision to declare them false as to their creditworthiness, and, more importantly, the applicants did not have an opportunity to address the negative aspersions, but they were told that folio 83, at least, was before the Tribunal member, the decision-maker in their case.
It is my submission to the Court that, to a reasonable lay observer, that would result in a perception of injustice. For example, the opportunity to address the aspersions was denied to them in the same way, for example, that Inspector Kanda did not see the adverse report. He never had an opportunity to address it. It is possible, as it would have been in Inspector Kanda's case, that he might have been unsuccessful in addressing it, but the issue really was the opportunity to address it. The most recent and closest circumstance I was able to unearth, your Honours, is still Percerep's Case [1998] FCA 1088; (1998) 86 FCR 483, which is referred to in the written submissions. That is a case where the Administrative Appeals Tribunal affirmed the making of an order under section 201 of the Migration Act as it then stood - - -
McHUGH J: I think this is your best argument, speaking for myself, that that - - -
MR KNOLL: Your Honour, I took the view, based on this morning's events, that I will make this point and I will stop.
McHUGH J: But what you say, following what Justice Weinberg said, is that there is a risk that it may have taken into account, and that is sufficient.
MR KNOLL: That is right, your Honour. I am understood.
McHUGH J: Yes.
MR KNOLL: In this particular instance, I would like - and I have shown this to my friend - to hand up what we think the Tribunal should have done, so that we can be as practical as possible about it. I will not read it; I will just, obviously, let it be silent. We say that even within the exception that exists in section 424A, these particulars could have been given to enable the opportunity to persuade this Tribunal to disregard the negative aspersions, and the absence of an opportunity to cause the Tribunal to disregard the negative aspersions was the denial of procedural fairness.
This case is one step stronger than Percerep's Case. In Percerep's Case, at the time of the Tribunal decision, as I understand it - it is not quite clear from the record - prisoner Percerep was not informed that the decision-maker had seen a particular document. In fact, that came out in the course of the litigation. In this instance, the applicants are told that the Tribunal did see the particular document, and, if anything, that makes their case stronger. That is, as your Honour correctly says, the one strong point here. That opportunity, to cause the Tribunal to disregard the negative aspersions by whatever means might be available, they did not have and it appears to be unjust, to anyone reasonably looking at it, that a document which contains negative aspersions goes to a decision-maker and the person before the decision-maker has no opportunity to deal with it.
McHUGH J: Mr Knoll, could you tell me what the jurisprudential theory behind Justice Weinberg's decision is, because, ordinarily, the theory is that if the Tribunal is going to take into account a particular matter, then it is obliged to put that matter to the person affected by it. But his Honour seems to approach it in quite a different manner. He says it is sufficient that there was a risk that they may have taken it into account. Now, that seems to strike new ground.
MR KNOLL: It is a slight extension, and I would respectfully submit that the extension was made because of the difference between Percerep's Case and Kanda. May I take the Court please to page 335 - it is the only cite I propose to do now. This is Kanda's Case [1962] UKPC 2; [1962] AC 322 at 335. Really, that is sort of the source of things. Inspector Kanda, as is well-known, was accused of not properly informing a Tribunal and the report on him was adverse, at the end of the day. At the bottom of 335, at point 8 - I am sorry, the House of Lords volume does not have the numbering - it is said:
The report of the board of inquiry contained a severe condemnation of inspector Kanda. It was sent to the adjudicating officer before he sat to inquire into the charge. He read it and had full knowledge of its contents. But inspector Kanda never had it. He never had an opportunity of dealing with it. Indeed, he never got it until the fourth day of the hearing of this action, when this took place between the judge and the legal adviser to the Government.
I shall not read on into the record, but the proposition that I am putting to the Court here is closer to Kanda than Percerep, in so far as the fact that the document is before the Tribunal is known to the applicants here and is known to Inspector Kanda; the fact that it was sent to the decision-maker in Inspector Kanda's case is like the present. Percerep is one slight step removed in that Justice Weinberg had to deal with the risk of that happening, but here we have the certainty. So I respectfully submit, I do not have to go to the extra mile - although, in many respects, there is much that is attractive about Justice Weinberg's judgment - because we would fit within the doctrine as squarely put in Kanda. That is our submission on that point, your Honour.
GLEESON CJ: Now, before you leave that point, can I take you back to the paper that you handed up?
MR KNOLL: Yes, of course, your Honour.
GLEESON CJ: Particulars that could have been provided?
MR KNOLL: Yes, your Honour.
GLEESON CJ: Can I draw your attention to paragraph 1?
MR KNOLL: Excuse me, your Honour, I think I just managed to hand up all of my copies. Thank you.
GLEESON CJ: Can you tell me what kind of a response a person might make to paragraph 1?
MR KNOLL: Yes. A person would bring forward character evidence in relation to their dealings during the time period specified - - -
GLEESON CJ: How long had these people been in Australia?
MR KNOLL: It is a decade, now, your Honour.
GLEESON CJ: 10 years. Okay.
MR KNOLL: And so they would have a base of character evidence that could bring forward to try and persuade the Tribunal to disregard the negative aspersions. That is as much as occurred to me at lunchtime, your Honour.
GLEESON CJ: Thank you.
MR KNOLL: Would your Honour excuse me a moment?
GLEESON CJ: Certainly.
MR KNOLL: Your Honour, I am informed, seven years. I apologise for misleading the Court.
GLEESON CJ: Yes.
MR KNOLL: Might I add one thing, if I may, to answer that question. It may also not just be character evidence. It may be evidence as to their dealings and attempts to obtain a life while here. So both might be helpful in causing a Tribunal to disregard the negative aspersions.
GLEESON CJ: If somebody confronted me with paragraph 1, apart from the possibility of getting a punch on the nose, I am not sure that they would get very much useful by way of response.
MR KNOLL: I do not put this forward as an attempt at perfect drafting, and indeed, if one had - - -
GLEESON CJ: But it demonstrates the problem, does it not?
MR KNOLL: It does, but, your Honour, the issue is a drafting problem. The question I was asked by your Honour, squarely, earlier on was is there any way of putting the substance before them, as was done in the second hearing in Arcadia?
GLEESON CJ: If you assume that this material was confidential - just make that assumption for the moment - - -
MR KNOLL: I will make the assumption for the moment.
GLEESON CJ: I have difficulty myself in understanding how you could have had a response to it without breaking the confidence.
MR KNOLL: I appreciate the difficulty, and my friend has put that to me, as well, in fairness to this case. I can deal with it in two ways: first, the practical and then the philosophical, as it were. The practical proposition is the nature of the negative aspersion. When a statute such as section 424A - I am keeping deliberately within the confines put before me, to work within that confine on this argument - says, "give particulars", it does not say, "give the evidence". Your Honour will appreciate that there are in some other tribunals where the evidence has to be given. But, in this particular instance, it says, "give the particulars" so as to enable a response. It is possible to identify, at least adjectivally, the nature of the allegations made when we are talking a seven-year history that does not reveal the thing that cannot be revealed - the personal nature of information.
One must recall that non-disclosable information, when looked at in the structure of the Freedom of Information legislation, what we are protecting is what is truly personal. There is litigation backwards and forwards as to what that means - judges have disagreed - but an earnest and, at least, good faith effort must be made to extract what is personal to protect that, but give the applicants a fair chance to respond to the negative allegations against them. A balancing test must be attempted. There is nothing before this Court that there was any effort at that. What was done was, "Look, we just cannot give this to you at all." What I am attempting to do, without necessarily saying my drafting is in any way artful over the lunch hour, is to suggest that it is possible to find a way of putting the substance to the applicants, and that is what fairness requires.
GUMMOW J: You were going to do something about order 1, were you not, of the motion?
MR KNOLL: Your Honour, in the effort to do the drafting, I - - -
GUMMOW J: Yes, I can understand that. Well, we need - - -
MR KNOLL: Would it be possible to have a moment or two to just speak with my friend?
GLEESON CJ: Well, let us know when you have finished your submissions.
MR KNOLL: Your Honour, I am not going to take any more of the Court's time.
GLEESON CJ: All right.
MR KNOLL: Justice McHugh has clearly picked up why I have chosen that point.
GLEESON CJ: Well, we are going to adjourn, anyway, to consider the course that we will take, so while we are out, you have a look at that.
MR KNOLL: Thank you, your Honour.
AT 2.14 PM SHORT ADJOURNMENT
UPON RESUMING AT 2.23 PM:
MR KNOLL: Yes, I thank the Court for the short adjournment.
GLEESON CJ: How did you get on, Mr Knoll?
MR KNOLL: The suggestion from my friend, which I freely accept, is to ask your Honours to please turn to page 317 of the application book. Your Honours will see there a second direction marked No 1.
GLEESON CJ: Yes.
MR KNOLL: My friend has suggested that that might be the form of order 1, and I am accepting of that.
GLEESON CJ: Very well. We will make an order that if access to the file is sought by anybody other than the parties, the parties' solicitors are to be notified and such access is not to be granted without further order of the Court, the parties' solicitors being given an opportunity to make submissions as to what that order ought to be.
MR KNOLL: If it please the Court.
GLEESON CJ: Thank you. We do not need to hear you, Mr Williams.
MR WILLIAMS: If it please the Court.
GLEESON CJ: Applications for an order nisi for writs of certiorari, prohibition and mandamus have been referred to a Full Court. The applicants have been identified in the originating process as Prosecutors 1, 2, 3 and 4. The reason for the anonymity need not be elaborated. The description of the applicants as prosecutors is technically inaccurate, but for convenience in these reasons I will adhere to that method of describing them. The first respondent is the Minister for Immigration and Multicultural Affairs. The second respondent is the member who constituted the Refugee Review Tribunal ("the Tribunal") in relation to the decision in question. The third respondent was the principal member of the Refugee Review Tribunal, but did not participate in the making of any decision of relevance to the present proceedings.
The four prosecutors are nationals of Romania. Prosecutor 2 is the de facto wife of Prosecutor 1. Prosecutors 3 and 4 are their children, one of whom is now an adult. For purposes of considering the arguments that have been raised in the present applications, there is no necessity to make any further reference to the position of Prosecutors 3 and 4.
The prosecutors arrived in Australia in early 1995, and shortly after their arrival they lodged applications for protection visas. They claimed refugee status upon the ground that they had a well-founded fear of being persecuted if they returned to Romania. It will be necessary in due course to make some further reference to the basis of that claim.
On four occasions between November 1995 and January 1996 the prosecutors were interviewed by a delegate of the first respondent. As will appear, those interviews extended over many hours. On 22 January 1996 the Delegate wrote to the prosecutors enclosing copies of certain country information that had been put to them in the course of an interview, and inviting comment. On 7 March 1996 the Delegate received documents in response from the prosecutors. On 20 June 1996 the Delegate refused the applications for protection visas.
On 19 July 1996 the prosecutors applied to the Tribunal for review of the Delegate's decision. In April and June 1997 there were hearings before the Tribunal and in December 1998 the Tribunal affirmed the decision of the Delegate. The prosecutors then applied to the Federal Court for judicial review of the Tribunal's decision.
In August 1999 Tamberlin J of the Federal Court set aside the decision of the Tribunal and remitted the matter to the Tribunal for reconsideration. The ground of that decision concerned a procedure that had been adopted by the member who constituted the Tribunal. It was held that the course adopted by the Tribunal resulted in a breach of s 430(1)(d) of the Migration Act (Cth) ("the Act"), which required the Tribunal to refer to the evidence or other material on which its findings were based. There was no reference in the decision to certain country information which the Tribunal had considered.
The Minister appealed to the Full Court of the Federal Court. The appeal was dismissed on 9 August 2000. It then became necessary for the Refugee Review Tribunal to reconsider the matter of its review of the Delegate's decision.
Proceedings to that end commenced on 10 October 2000 when the Tribunal wrote to the prosecutors inviting them to attend a hearing on 14 November 2000. It is convenient at this stage to pass over the detail of what occurred between 10 October 2000 and 27 March 2001. What occurred in that respect is the basis of the applications that are presently before this Court. On 27 March 2001 the second respondent dealt with the matter. The prosecutors did not attend. On 11 May 2001 the Tribunal gave a decision affirming the Delegate's decision. It is that decision which is the subject of the proceedings before this Court.
Up to the time of the proceedings before the Tribunal on 27 March 2001 there had been some 25 hours of oral hearings before a delegate and before a differently constituted Tribunal. The prosecutors were legally represented in the proceedings before the Federal Court but not otherwise in relation to any aspect of the proceedings to which reference has already been made.
In that respect, it should be noted that the Tribunal, over a long period of time, but particularly over the period between October 2000 and March 2001, received extensive correspondence from the second prosecutor in which she dealt at length and in detail with various aspects of the matter that was before the Tribunal. Her correspondence was written in terms that were both highly competent as well as combative, and that demonstrated a close appreciation of the issues and of the significance of the events that were taking place in connection with the matter.
It is unnecessary to refer in detail to the claim for protection. It suffices for present purposes to say the following about it. The first prosecutor said that while he was living in Romania he was forced against his will to become an informer for the secret service organisation of that country called the Securitate. That, it would appear, does not distinguish him from a very large number of his fellow countrymen. The Tribunal at one stage indicated that information before the Tribunal showed that approximately one in four of adult Romanians were in that situation.
The first prosecutor gave an account of his history after leaving Romania which, if accepted, would have supported his claim that he had a well-founded fear of persecution if he returned to Romania. The Tribunal disbelieved a number of aspects of the story told by the first prosecutor, but the substantial ground upon which the Tribunal based its adverse decision was that conditions in Romania were such that the prosecutors, and in particular the first prosecutor, had no reason to fear persecution.
The Tribunal set out in detail information it had under the heading "Current Country Information". The Tribunal accepted that the first prosecutor was an informer for Securitate but noted that there was no claim, and the evidence did not suggest, that he was an officer of that organisation. On his evidence, he was a minor operative, an apparently unwilling informer who did the minimum amount necessary to avoid the adverse attention of his supervisor.
The Tribunal noted extensive information about the system that existed in Romania at the relevant time. The Tribunal was satisfied that anyone who had access to Securitate files prior to 1999 would not know the identity of the informer who supplied the information within the files. The Tribunal was satisfied that the subjects of files, even if they had been able to read their files, would be unable to link particular data to the first prosecutor as an informer. The Tribunal found:
Further, having regard to all the circumstances, I do not accept that there is any reason he would have been or would now be suspected by the subjects of the information of having informed on them. It follows that he would not be a target for retribution or harm from anyone on whom he informed.
The Tribunal then went on to refer to the safeguards that had been adopted in Romania to protect people such as the first prosecutor. The Tribunal said:
I am satisfied that the chance of harm befalling [the first prosecutor] in the reasonably foreseeable future at the hands of people on whom he may have informed prior to 1989 and who have had access to their own files since the new legislation of late 1999 is remote. The remoteness of the chance is enhanced by the new climate of openness surrounding the old Securitate, as exemplified by the legislation.
The Tribunal concluded:
On all the evidence before me, I am satisfied that there is no real chance that [the first prosecutor] will suffer harm, let alone harm amounting to persecution, for reason of his connection with Securitate . . . or with a subsequent security organisation . . . Equally, I am satisfied that there is no real chance that [the second prosecutor] will suffer any harm for reason of her association with [the first prosecutor] . . .
I am satisfied that neither [the first prosecutor] nor [the second prosecutor] suffered harm, let alone harm amounting to persecution, for a Convention reason in the past. I am also satisfied that the chance of such harm befalling them in the reasonably foreseeable future is remote. It follows that I am not satisfied that either [the first prosecutor] or [the second prosecutor] have a well-founded fear of persecution for a Convention reason. They are not refugees.
Three grounds are advanced in support of the application for constitutional relief. Ground A asserts a denial of procedural fairness in relation to the decision of the Tribunal to go ahead with the hearing on 27 March 2001 in the absence of the prosecutors. Ground B asserts a denial of procedural fairness in relation to certain confidential documents that were not disclosed to the prosecutors. Ground C asserts apprehended bias on the part of the second respondent, the member who constituted the Tribunal on 27 March 2001. The resolution of the matter turns entirely upon questions of fact. The case raises no doubtful question of legal principle.
In relation to ground A, it is necessary to note the statutory background. Section 426A of the Act provides:
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
That is a significant part of the context in which the events I am about to outline fall to be considered.
The prosecutors were invited to attend hearings before the Tribunal scheduled first for 14 November 2000, then for 24 November 2000, then for 9 January 2001 and then for 13 February 2001, before the hearing ultimately took place on 27 March 2001. In relation to each of those four earlier scheduled hearings the Tribunal granted adjournments at the request of the second prosecutor.
The first hearing scheduled for 14 November 2000 was adjourned at the request of the second prosecutor made in a letter dated 3 November 2000. The letter referred to the recent loss of employment by the first prosecutor and stated that both he and the second prosecutor were unable, both psychologically and in practical terms, to attend a hearing.
The second scheduled hearing on 24 November 2000 was adjourned following requests by the second prosecutor in letters dated 16 November 2000 and 22 November 2000. In her letter of 16 November 2000 the second prosecutor asked that the hearing be relisted because the first prosecutor had an appointment with a specialist medical practitioner on 24 November 2000 and attached a certificate from a general practitioner confirming the referral. The general practitioner's certificate stated:
These patients suffer from anxiety and from depression/psychological problem. These patients referred to psychiatrist for reassessment and followup.
On 17 November 2000 the Tribunal wrote to the prosecutors advising that the hearing would proceed on 24 November 2000 as scheduled. The Tribunal attached country information in relation to the current circumstances in Romania for former Securitate officers and observed:
Please find enclosed some recent information that the Member has read which indicates that one in four Romanians were believed to have collaborated with the secret police, that many of these people have since taken an active part in public life, and that new legislation provides that former Securitate officers can be exposed but not punished. Presumably, there is much less concern about those who were not Securitate officers but simply unwilling informers. On the basis of this information, the Member would be asking your husband at hearing if there is more than a remote chance that he would be harmed on return to Romania for reason of his former involuntary association with Securitate.
By a letter dated 22 November 2000 the second prosecutor reiterated her request to adjourn the hearing scheduled for 24 November 2000. The letter attached two further medical certificates. Dr Tran, a general practitioner, stated that the first and second prosecutor suffered from stress/anxiety and depression and confirmed that they had been referred to Dr Burek, a psychiatrist. Dr Burek stated that they appeared depressed and demoralised, were commencing antidepressant medication and were not fit to appear in tribunal or courtroom settings for at least one month.
The third scheduled hearing on 9 January 2001 was postponed at the request of the second prosecutor in a letter dated 7 January 2001. The letter attached a medical certificate from a general practitioner stating that the first and second prosecutor suffered from depression due to long-term family, social, financial and immigration problems and would be unable to attend a hearing before 4 February 2001.
On 15 January 2001 the Tribunal wrote to the first prosecutor advising that the hearing listed for 9 January 2001 had been rescheduled for 13 February 2001. The Tribunal referred to the previous adjournments on the basis of medical certificates from three different general practitioners and one psychiatrist. It noted that any further requests for adjournment on medical grounds would require confirmation by referral to the Commonwealth Medical Officer.
The fourth scheduled hearing on 13 February 2001 was adjourned on the basis of a facsimile from the second prosecutor dated 7 February 2001. The facsimile attached certificates dated 1 February 2001 from another general practitioner stating that the first prosecutor and second prosecutor were suffering from mental stress or mental problem and would be unfit to attend a hearing until 5 March 2001.
Following the postponement of the fourth scheduled hearing, the Tribunal wrote to the first prosecutor on 5 March 2001 advising that appointments had been made for him and the second prosecutor to be examined by the Commonwealth Medical Officer on 15 March 2001. The letter advised the prosecutor that the hearing had been rescheduled for 27 March 2001 and enclosed another letter formally inviting the prosecutors to attend that hearing. The letter concluded with the following statement:
If the CMO, as a result of his examination, says that you are fit to attend the hearing on 27 March 2001, you must attend it. Postponement of the scheduled hearing will only be arranged on the orders of the CMO.
In a letter dated 12 March 2001 the second prosecutor wrote to the acting principal member of the Tribunal in relation to requests she had made for the Tribunal to be constituted by a member other than the second respondent. She noted that she had not received a response to her request to adjourn the hearing scheduled for 13 February 2001 and attached a further medical certificate from a general practitioner. The certificate dated 3 March 2001 stated that the first prosecutor and second prosecutor were both still unable to attend court and tribunal for a month's duration.
The first prosecutor and the second prosecutor did not attend for examination by the Commonwealth Medical Officer as appointed on 15 March 2001. That day the Tribunal arranged for inquiries to be made through Australia Post to confirm delivery of the letter of 5 March 2001 to the prosecutors' address for service, a post office box at Richmond Post Office. An officer of Australia Post assured the Tribunal that the letter of 5 March 2001, identifiable by its express post item number, had been delivered into the prosecutors' box on 6 March 2001.
On 16 March 2001 the Tribunal wrote to the prosecutors, noting its understanding that they had failed to attend for examination by the Commonwealth Medical Officer and confirming that they were expected to attend the hearing scheduled for 27 March 2001. The Tribunal warned:
If you do not attend the hearing, the Tribunal will proceed to make a decision on your case.
In a facsimile dated 24 March 2001 the second prosecutor responded to the Tribunal's letter of 16 March 2001. She claimed that she had not been notified of any appointment to attend the Commonwealth Medical Officer and, inferentially, that she had not received the letter dated 5 March 2001 inviting the prosecutors to the hearing scheduled for 27 March 2001. The facsimile included the following statement by the second prosecutor:
Please note that we have our own very serious commitments and are not prepared to tolerate any of your abuses. Furthermore, we are unable to attend, due to the lack of improvement in our medical condition.
Despite having received the Tribunal's letter of 16 March 2001 warning that the hearing would proceed on 27 March 2001, the prosecutors did not attend the hearing.
In its reasons for its decision the Tribunal explained why it proceeded on 27 March 2001 in the absence of the prosecutors. The Tribunal reviewed the long history of the prosecutors' applications and concluded that in the circumstances it would not be a denial of procedural fairness to proceed to a decision without hearing oral evidence. The Tribunal referred to the following matters. First, in the light of the course of correspondence with the prosecutors, the Tribunal found it implausible that the letter of 5 March 2001 did not reach its destination. The Tribunal rejected the assertion that the letter had not been received. The Tribunal was satisfied that it had been placed in the prosecutors' post office box on 6 March 2001 and that the prosecutors had received it. That finding of fact was well open to the Tribunal.
Secondly, the Tribunal observed that, in any event, there was no dispute that the prosecutors had received the Tribunal's letter of 16 March 2001 notifying them that the hearing was scheduled for 27 March 2001 and that the Tribunal would proceed to make a decision if they did not attend. The letter specifically adverted to the most recent medical certificate provided and stated that it was insufficient reason to excuse the prosecutors from attending the hearing.
Thirdly, the prosecutors had been on notice since the Tribunal's letter of 15 January 2001 that further adjournment requests on medical grounds would require referral for independent examination by the Commonwealth Medical Officer.
Fourthly, the Tribunal was satisfied that the prosecutors neither wished nor intended to attend a hearing or respond to the country information provided to them in the reasonably foreseeable future. That finding of fact was well open to the Tribunal.
Fifthly, there had already been ample opportunity for the prosecutors to present their claims orally during 191/2 hours of interviews by the primary decision-maker and two hearings before the previous Tribunal differently constituted.
Sixthly, as the Tribunal had before it the material previously obtained from the prosecutors, which they had reviewed and checked, and as there was no reason to believe that their circumstances had relevantly changed since the hearings before the previous Tribunal, it was doubtful that anything would be gained by a further hearing.
The primary basis on which the argument for the prosecutors in this respect has been presented is that in proceeding with a hearing on 27 March 2001 there was a failure to extend procedural fairness to the prosecutors. In that respect, as has already been noted, s 246A of the Act provides an important part of the background against which the Tribunal was acting. The reasons given by the Tribunal for proceeding as it did are cogent and compelling and the findings of fact upon which those reasons were based were open and soundly based. In particular, in all the circumstances, the Tribunal was justified in concluding that the prosecutors did not wish or intend to attend a hearing before the Tribunal in the reasonably foreseeable future. It is also important to bear in mind the long history of the proceedings and the extensive opportunity that had been given to the prosecutors to provide information to, and make their case before, the Tribunal. This argument must fail.
The second basis upon which ground A was pressed was more particular. It was submitted that the Tribunal failed to extend procedural fairness to the prosecutors because in the events leading up to the making of the decision the prosecutors were not given fair warning of the possibility that the Tribunal might find that they were, to put it bluntly, stalling and that they had no serious intention to attend a hearing before the Tribunal in the reasonably foreseeable future.
It is difficult to imagine anything that could have been more obvious to the prosecutors, at least one of whom is demonstrated to be a very astute person, than that over the period between November 2000 and March 2001 the Tribunal was becoming increasingly sceptical as to the good faith of the prosecutors. Over that period the Tribunal was repeatedly seeking to check up on the medical information that was being tendered to it on behalf of the prosecutors and, finally, the Tribunal indicated that it wanted the Commonwealth Medical Officer to check the allegations that were being advanced as to the condition of the prosecutors. In addition, the communications that were being sent repeatedly warned the prosecutors that the time would come, and come shortly, when the Tribunal was going to go ahead in their absence if they chose not to attend.
The prosecutors were given more than fair and adequate warning of the course that the Tribunal ultimately took and of the basis upon which it finally decided to take that course. Ground A must fail.
In relation to ground B, it is necessary to refer to another provision of the Act. Section 424A of the Act provides:
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
Section 424A(3)(c) refers to "non-disclosable information", which is defined in s 5 of the Act to mean, amongst other things, information or matter whose disclosure would found an action by a person for breach of confidence.
It is submitted on behalf of the prosecutors that matters adverse to the prosecutors which came to the attention of the member before she made her decision were not put to the prosecutors for their comment. The matters in question appear in two documents which were withheld from production under the Freedom of Information Act on the basis of confidentiality. An examination of the contents of those documents and a consideration of the material contained in them supports the conclusion that they were confidential, that the disclosure of those documents would have involved a breach of confidentiality and that the information would have been non-disclosable within the terms s 424A(3), if it had otherwise been within s 424A(1). It would be inappropriate to elaborate beyond that.
It was submitted in argument on behalf of the prosecutors that there was a formula that could have been employed to enable at least some notice of what was in this material to be given to the prosecutors to enable them to respond to it if they thought fit. Counsel suggested a formula that might have been used, but the formula would not have put the prosecutors in any better position to respond to the matter in question. Indeed, it would have created for them a mystery.
There is another reason why this ground must fail. There is nothing in the reasoning of the Tribunal to suggest that the matter in question was given any significance by the Tribunal or even that it was regarded as relevant. In truth, and partly because of the generality with which the information was expressed, it was irrelevant. The issue that was in the forefront of the merits of the matter for the Tribunal's determination was the question of the likelihood of retribution upon return to Romania by the prosecutors. The material in question had nothing whatever to do with that issue. It contained some adverse reflections upon the prosecutors, but those reflections were made in a context that indicated that they had no bearing on the matter that was for decision by the Tribunal, and they were so lacking in specificity that they could not have influenced the Tribunal's decision in any way. This ground also must fail.
Ground C is based upon apprehended bias, mainly, but I think not exclusively, in the form of prejudgment. There was also a suggestion that there may have been bias in the form of animus on the part of the member towards the prosecutors, particularly as time moved on towards the hearing and scepticism was expressed as to the excuses that were being advanced for their failure to attend hearings or attend the Commonwealth Medical Officer.
A consideration of the terms of the correspondence between the Tribunal and the prosecutors, read in light of the correspondence from the second prosecutor to the Tribunal, as well as the reasons for decision, demonstrate that the second respondent conducted herself with courtesy and restraint. There is no reason to doubt that she kept an open mind on all issues that required her decision, including the issue of the medical condition of the prosecutors. Nor is there any reason to doubt that she was capable of bringing, and that she brought, an independent and open mind to the performance of her task. A reasonable observer would have had no grounds for apprehending bias in any form. Ground C has not been made out.
I would propose that the applications should be dismissed with costs.
McHUGH J: I agree.
GUMMOW J: I agree.
GLEESON CJ: The order of the Court will be as I have proposed. We will adjourn.
AT 3.15 PM THE MATTER WAS CONCLUDED
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