SZBEL v MIMIA & Anor [2006] HCATrans 427 (4 August 2006)

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SZBEL v MIMIA & Anor [2006] HCATrans 427 (4 August 2006)

Last Updated: 14 August 2006

[2006] HCATrans 427

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S66 of 2006

B e t w e e n -

SZBEL

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 AUGUST 2006 AT 1.50 PM

Copyright in the High Court of Australia

MR N.J. WILLIAMS, SC: May it please the Court, I appear with MS R.S. FRANCOIS for the applicant. (instructed by Legal Aid Commission of New South Wales)

MR R.T. BEECH-JONES: I appear for the first respondent. (instructed by Clayton Utz)

KIRBY J: There is a submitting appearance for the Tribunal. Yes, Mr Williams.

MR WILLIAMS: Your Honours, the application raises one special leave question and that is whether it is a denial of procedural fairness for a decision-maker to reject an application because of adverse conclusions based on specific factual assumptions that were neither reasonably obvious from the material before it nor raised for comment with the applicant. The Tribunal in this case found that the applicant’s account was not - - -

KIRBY J: Is that matter the question of whether had he been considered or even suspected as an apostate he would have been locked up on the vessel on which he was travelling, or is it something other?

MR WILLIAMS: That is one of the four specific factual assumptions that the Tribunal made. Each of the four matters involves a specific factual assumption that was not raised with the applicant; none were obvious and at least two were improbable conclusions. They are set out from page 13 of the book. The ultimate conclusion on which our friend relies is at about line 35 on page 13 of the book in which the Tribunal expressed its rejection of the applicant’s account. From the foot of page 13, in the last sentence, the Tribunal referred, going over to the top of page 14:

that key aspects of the Applicant’s claim lack credibility –

in ways that it went onto enumerate. At about line 10 it referred to the fact that:

The Applicant makes no claim as to having been accused of any Christian activities while on board ship –

and referred to his claim that his interest in Christianity had become known to the captain through a fellow crew member from his hometown in Iran. Then, at about line 22, the Tribunal makes specific factual assumptions, in our submission, about the manner in which Hezbollah operates and about the manner in which information about the applicant’s conversion to Christianity would travel within his hometown in Iran. Those assumptions underlie the conclusion that the Tribunal expresses from line 22 to line 25.

Then in the following paragraph, from line 27, the Tribunal makes a specific factual assumption about whether the captain of his ship would act on information supplied to him by another crew member from the applicant’s hometown. Those two paragraphs are sufficient for present purposes but other specific factual assumptions are made in the following paragraphs as well. Neither of the two that I refer to was an obvious assumption on the material that was before the Tribunal and neither was raised with the applicant.

The Federal Court dealt with the matter from pages 54 to 55 of the book. Ground four dealt with it at the foot of the page, from paragraph 44. It deals with denial of procedural fairness. The key reasoning is at page 55 of the book, in paragraph 45. The judge, exercising appellate jurisdiction, referred to the fact that:

A decision-maker such as the Tribunal was obliged to advise a person such as the Appellant of any adverse conclusion which would not obviously be open on the known material. However, such a decision-maker would not be otherwise obliged to expose his or her mental processes or provisional views to comment before making the decision in question - - -

KIRBY J: How does one differentiate “mental processes or provisional views”, which do not have to be revealed, if that is the law, from factual conclusions of a highly particular kind which fairness may require ought to be revealed? Is there any formulation of – did Justice Gummow, in the case you refer to, give any guidance on how one differentiates those two considerations?

MR WILLIAMS: I believe not, your Honour, but the answer to your Honour’s question is that that differentiation is at the heart of the special leave question that we raise. I will take the Court to one authority in a moment, an authority of this Court, that we say elucidates the matter but before doing so might I - - -

KIRBY J: Do you accept that the Tribunal is not obliged to disclose its mental processes or provisional views?

MR WILLIAMS: If it is merely reasoning from material that is obvious or factual conclusions that are obvious from things that are raised the Tribunal does not have to expose mere reasoning processes, but when one considers factual assumptions of the kind in question here, which were central to the findings on the applicant’s credibility and which, in our submission, were, on any view, improbable conclusions, the Tribunal is obliged to expose to the applicant its factual assumption for the applicant to deal with. I will take your Honours directly to the case that we say supports that but, before doing so, if I can simply notice paragraph 46 on page 55, the last sentence at line 25 shows his Honour posing the question whether:

rejection of the Appellant’s claim was obviously open on the known material.

So his Honour has characterised the relevant question as being at the level of the entire claim. Was it open - - -

HEYDON J: Or is it claim in the sense of claimed reasons for jumping ship?

MR WILLIAMS: It might be claimed reasons for jumping ship but at that level too, we say it is at too high a level of generality for - - -

HEYDON J: Are you challenging anything that has ever been said in a Federal Court decision in this field or are you seeking some clarification of what the test is or are you saying it is just a misapplication of the received law?

MR WILLIAMS: We are seeking clarification of the test. Perhaps I could take the Court directly to the decision of the Court in the respondent’s authorities, tab 2, the decision in Re Minister; Ex Parte Palme [2003] HCA 56; (2003) 216 CLR 212. The relevant passages are from page 219. The subject matter, as your Honours will recall, was a submission to the Minister in that case prepared by departmental officers and the contention was that it did not present a balanced picture and did not supply pitch or balance and that is referred to in 20 and 21.

But then in paragraph 22, the joint judgment of the Chief Justice, Justice Gummow, and your Honour Justice Heydon, with whom Justice McHugh agreed – your Honour Justice Kirby did not need to deal with this point – sets out the test from Commissioner for Australian Capital Territory Revenue v Alphaone:

“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.

If I can take the Court over to the following page, at page 220 at paragraph 24, the submission put there was referred to, the submission put on behalf of the prosecutor that the departmental summary was “adverse material” on which he should have been the opportunity to comment. But we rely particularly on the joint judgment’s formulation at 25 of the applicable principle deriving from Aala:

But, in that case, the decision-maker, the Tribunal, had so conducted the matter that the prosecutor was deprived of a fair opportunity to correct an erroneous and factual assumption relevant to his credibility and the majority of the Court held that it could not be predicted that, had the Tribunal been alerted to the situation, the result inevitably would have been unchanged.

We submit that the present case is entirely within that description. There is - - -

KIRBY J: Was there any country information or other material relating to the ways of Hezbollah or of Iranian authorities or of Iranian ship captains that was relevant to the factual determinations that you challenge?

MR WILLIAMS: The extent of the relevant country information, I believe, was set out at page 11, your Honour. There is other material referred to but in direct answer to your Honour’s question, page 11, I believe, sets out the extent of it. There is, in 1.7.10.1 a reference to the government ownership of “Iranian shipping lines”, “employment profile”, “managerial positions”, “character requirements”:

no one with a history of opposition activities or black-listed would be eligible –

attractive position. There is, then, in 10.2, the second paragraph, the question of penalty for desertion is dealt with. In 10.3, merchant shipping lines have “bureaus”, “security personnel on each ship”, noting and policing “un-Islamic” behaviour:

However, it is highly unlikely any serious action would be taken against personnel merely on account of critical comments/statements of the Government or the regime. General grumbling about the country . . . do not in themselves usually attract any penalty or punitive action. However direct and continuous provocative criticism of Ayatollah Khomeini or strident advocacy of the overthrow of the regime would not be well-received –

and there would be pressure brought to bear. Then in 10.4 - - -

KIRBY J: It does seem to, at 1.7.10.4, make reference to detention.

MR WILLIAMS: Yes. For a person who establishes:

an adverse political profile, through persistent statements, declarations, and subversive activities –

and such a person would be expected to be confined and would find it difficult. The evidence here, of course, was that when the applicant left the ship in Port Kembla to go for medical treatment he was accompanied by someone else from the ship and returned and that he escaped that night through the actions of another who distracted the security officer on the ship while he did so. Of course, at this point in time - - -

KIRBY J: Would that reference to detention, in 1.7.10.4, be sufficient to sustain the factual statement that the captain would have handed him over to be - stringent measures set in place to restrict his movement on the ship?

MR WILLIAMS: We would say no, your Honour, because the evidence here does not go so far as to bring the applicant within this kind of description of a person who had established through persistent statements an adverse profile. He was a person who was under suspicion by the captain, had been interrogated, had given further denials, and who at this point was the subject of a statement of intention by the captain, but against - - -

KIRBY J: Did the Tribunal accept that he kept quiet about this on the ship? That is what he said, was it not, that he did not reveal his Christian beliefs on the ship?

MR WILLIAMS: Yes, that is so. I am not sure that the Tribunal made a finding about that specific point because it rejected his entire account for the reasons that it gave.

KIRBY J: Now, what is the status of this statutory declaration on page 37 of the supplementary book, because I must admit that it does seem to support your case? He denies being an economic refugee and says on the contrary he is one of the top earners. He is earning $US500 a month, which is a very high salary by Iranian standards.

MR WILLIAMS: That was material that was before the Tribunal at the relevant time.

KIRBY J: That was before the Tribunal, was it? So it is part of the record?

MR WILLIAMS: Yes. It was received on 24 February 2003.

HEYDON J: Your basic demand or request of us is to try and define what issues have to be, as it were, laid out before applicants and what do not and the Alphaone is a very vague, amorphous passage with respect to its authors. That is what you want?

MR WILLIAMS: Yes. That is the central question.

KIRBY J: But how could that ever be done except by reference to the facts of a particular case and principles of fairness and justice to the parties, procedural fairness? I mean it is all going to be formulaic, is it not, as in Aala?

MR WILLIAMS: There is, in most natural justice cases, a question of a very particular factual context. Nevertheless, there is underlying this case, and it raises it in a particularly stark form, makes it, in our submission, an ideal vehicle for elucidating the issues. An unresolved tension in the cases between the principal and an administrative decision-maker must advise of any adverse conclusion not obviously open on the known material and the principal decision-maker is not otherwise obliged to expose reasoning.

The findings here, and I refer in particular to the two that I have taken the Court to from page 14 - implausibility. It is implausible that a personal conversation while the applicant is in port for 10 days would attract the attention or interest of the Hezbollah and become public knowledge. That involves a very specific factual assumption. There was nothing in my understanding about the Hezbollah at all.

KIRBY J: To what extent – I mean, the Court has said in.....and other cases that one should not encourage, in judicial review, fine toothcombing of reasons. Also, this is a specialist Tribunal that does a lot of these cases and most Tribunal members would have had a number of cases from Iran. They pick up general knowledge about Iran. One gets a bit of an impression that the Tribunal member is here referring to something that might have been acquired in the course of other cases.

MR WILLIAMS: That may well be so and if that is so it invokes in stark form the principle that is established in respect of the Administrative Appeals Tribunal at least, that where a member has specialist expertise and
proposes to rely on that expertise in a particular way there is no difficulty in doing so provided the conclusion is exposed for comment. This conclusion, in our submission, was a highly improbable one, not based in any evidence, and one that could have been rebutted directly by the applicant if it had been raised by elucidation of the circumstances of the relevant conversations and at the manner in which information travels in his town.

HEYDON J: It might not be a king-hit point but there seems to be a sort of jumbling. Lines 18 to 20 and lines 21 to 25 just do not meet each other. One is about being at home for 10 days and what becomes known as a result of that. The other one is about what happens when you are in port for 10 days and what is learnt then back by the Hezbollah in Iran. There seems to be a complete misunderstanding of the applicant’s evidence.

MR WILLIAMS: Yes.

HEYDON J: But that, perhaps, is not your precise point.

MR WILLIAMS: Well, it does expose a further aspect of the difficulty with this conclusion. These two particular findings are the first matters that the Tribunal puts as the basis of its finding of a lack of credibility. They are each improbable and bristle with problems, but the biggest problem that they bristle with is that in no sense were they ever raised with the applicant. The applicant had given evidence of these matters.

KIRBY J: Yes, I think we have heard enough from you, Mr Williams. We will hear from Mr Beech-Jones.

MR BEECH-JONES: Yes, your Honour. Your Honours, just to answer what I understand Justice Heydon was raising, I read the reference to “in port” to be a reference to when the ship was in port, perhaps, rather than the applicant was because that is the conversation he referred to where he disclosed it - - -

HEYDON J: Yes. So do I, but the fact is that line 16 talks about a:

conversation among his friends when at home for ten days - - -

MR BEECH-JONES: Yes. That is what he said, your Honour.

HEYDON J: But then the Tribunal says:

a personal conversation while the Applicant is in port –

on the ship –

for ten days.

There is a difference between being in Iran for 10 days and on the ship in Wollongong for 10 days.

MR BEECH-JONES: Well, your Honour, I understood that to be a slip but it leads me to this, that one must bear in mind that the challenge in this case is not to the adequacy of the reasons or to - - -

HEYDON J: I accept my point is different from Mr Williams’ point.

MR BEECH-JONES: Yes. It is not based on - - -

HEYDON J: And is not enough.

MR BEECH-JONES: It is not based on illogicality review, to the extent that is available, or Wednesbury unreasonableness. To the extent my friend talks about it being devoid of plausibility or, to use a phrase, he is not seeking to challenge - - -

KIRBY J: It is really a tricky and puzzling problem not to fine toothcomb and not to require the Tribunal to expose the way it is thinking in all of that detail that goes on but to reveal such matters that a person should be able to respond to it in order to inform the decision-maker and make sure that they do not make mistakes of fact.

MR BEECH-JONES: Your Honour, can I put it is as simply as I can in this way. The relevant finding, we contend, was the finding of the rejection of his claim that he left the ship on account of his religious beliefs and his fear of harm about that. That was the case he put forward. That is what the Tribunal did not accept. It then, in the passage to which my friend took your Honours to on page 14, set out its reasoning for rejecting that factual assertion and its reasoning turned upon an assessment of what it regarded as the likelihood or unlikelihood of the version of events that he had given.

My friend has characterised that as involving factual assumptions. We may be debating labels but, in my respectful submission, and perhaps the analogy with trial judges is assessments as to whether what the plaintiff or the relevant witness is saying is inherently likely or not.

KIRBY J: Well, I just would not know whether a captain of an Iranian ship would lock up or have the facilities to lock up for a long voyage, as Australian voyages are, a person who reveals an apostate interest in the Christian religion.

MR BEECH-JONES: Well, it may be that your Honour, if your Honour was sitting as a trial judge, would not engage in that sort of reasoning but it is, in my respectful submission, a different question as to whether a Tribunal member or a trial judge who does breaches procedural fairness by not revealing it. To take an example in a different context; a trial judge hearing a personal injury case involving a plaintiff involving what happens on a factory floor may reject the plaintiff’s version as being, in some respects, inherently unlikely. That may involve a body of knowledge or an assessment that one might disagree with or involve aspects of what we might call common sense, but what my friend has to go as far to say that that type of reasoning, that is an assessment of likelihoods, will get to the point of requiring the disclosure by, in that case the trial judge, in other cases administrative decision-makers who look at very different factual circumstances, their reasoning, their assessment - - -

HEYDON J: One difference, the plaintiff in the factory is a defendant and the defendant will attack the plaintiff’s version. If the judge wanted to find against the plaintiff for some reason that the defendant’s counsel had not exposed the judge would normally raise it with plaintiff’s counsel.

MR BEECH-JONES: It may depend upon the reason, your Honour. Ordinarily you would, for example, transpose this case, expect it to have been put if it was an adversarial context, that he did not jump the ship, but you would not necessarily expect it to be put “Look, I suggest to you it is inherently implausible that these things happened”. That may not be a necessary aspect and - - -

HEYDON J: Mr Williams’ point is you would not if it was fairly obvious what the ripostes might be, but some of these ripostes are not very obvious. Is that because of their slightly questionable, unusual character?

MR BEECH-JONES: Well, they are unusual to us looking at them because we do not perhaps deal with what happens in this particular in Iran but trial judges and decision-makers look at all sorts of different contexts and an acceptance of what Mr Williams says if you are going to reason about likelihoods you have to tell them what the reasoning is and with all the prospects that that requires, in my respectful submission, of that kind of continuous disclosure of going back and forth, “Decision-maker, you say that is unlikely. We say this”. That is, in my respectful submission, why a dividing line needs to be drawn between reasons and adverse conclusions - - -

KIRBY J: Well, Justice Gummow, in Alphaone in the Federal Court, said that the test or criterion is a critical issue or factor and it may be that one cannot get better than that but maybe we should try by identifying the matters that make a factual determination critical or - - -

MR BEECH-JONES: Your Honour, Justice Gummow was not in Alphaone. Is your Honour looking at that or Broussard - - -

KIRBY J: What was the case that Justice Gummow - was that Aala? He was a part of the joint reasons in Aala.

MR BEECH-JONES: Well, in my friend’s list – my friend has two on the list for when Justice Gummow, his Honour, sat on the Federal Court. There is that idea of bringing to someone’s attention the crucial factor or issue upon which the case depends, and that has been adverted to in Kioa and so forth, but in this case the critical issue to which his attention was drawn was the possibility which has never been contested that he knew about, that his assertion as to why he left the ship might be rejected. That was the critical issue which no one has contended he was not aware of, a possibility that would be decided against him.

The result was the Tribunal, not based upon information from a third party source à la Kioa or VEAL, not involving some adverse reflection upon him generally, as sometimes happens in these cases, the Tribunal simply said, “I have listened to what you say. I do not regard it as likely that that occurred for these reasons” and those are reasons not involving what I might call third party factual material. That, in my respectful submission, is marching well into the territory that these cases have left out because of the prospect of a never-ending series of disclosure between decision-maker and disappointed applicant of going back and forth with each aspect of the reasoning being tested. Now, your Honour, that is my position - the matters I wish to say in opposition.

KIRBY J: Yes, thank you, Mr Beech-Jones.

MR BEECH-JONES: Your Honour, could I just correct one matter. Something in my submissions could be taken as saying that this point was not raised below. I did not mean to say it in those terms. There was no doubt that the procedural fairness ground was raised similar to this - - -

KIRBY J: It is dealt with.

MR BEECH-JONES: It was dealt with.

KIRBY J: It is the fourth ground, I think.

MR BEECH-JONES: It was really more there did not seem to be clear that there was a debate about “Was this within Alphaone or was it an extension of Alphaone?” but it was expressed in terms that may have suggested that a point was not raised and it clearly was.

I am sorry, your Honours. Could I just raise one final matter? Sometimes one can test these things by asking “Well, what is it that was said should have been disclosed?” The best articulation of that appears to be at page 19 of the book which is in the application under ground 2.

KIRBY J: Yes.

MR BEECH-JONES: What is said there, effectively, in the particulars is the Tribunal should have said to the applicant - and this may have put it a bit high but, look, it seems to me implausible that based on:

a personal conversation between friends in a small town to become known within 10 days to the Hezbellah or other town members -

that it would have become known. When one starts to formulate the questions in a case such as this, in my respectful submission, it starts to become clear that the prospect of that potentially endless debate between the decision-maker and the applicant starts us to stretch out because the answer may come back from that, “Why do you think it is implausible?” “Well, it just seems that people might have said”. Then the debate would go on and on, as opposed to “I have information here”, the third party information case which is always relatively clear. Those are my submissions.

KIRBY J: Yes, Mr Williams.

If special leave were granted in this case, the Court would be assisted by that line of territory which you referred to in the Administrative Appeals Tribunal concerning the extent to which a specialised tribunal can take into account matters which, perhaps, go beyond general knowledge, but under conditions that the tribunal concerned reveals those matters to parties who are affected. Secondly, any decisions overseas on this issue of the borderline, especially in inquisitorial procedures (as Justice Heydon has pointed out) between revealing thought processes, and revealing critical or unusual factors that need to be addressed in order to reach a correct decision by fair procedures.

MR WILLIAMS: Yes, your Honour.

KIRBY J: Special leave is granted in this application.

MR WILLIAMS: May it please the Court.

KIRBY J: It would be expected that the matter would be dealt with and concluded in argument in, perhaps, a little more than half a day. The matters that the Court needs assistance on are those that have been disclosed during argument.

The Court will now adjourn in order to be reconstituted for the remaining applications.

AT 2.21 PM THE MATTER WAS CONCLUDED