Habib v Minister for Foreign Affairs and Trade & Anor [2009] HCATrans 215 (4 September 2009)

Last Updated: 7 September 2009

[2009] HCATrans 215

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S111 of 2009

B e t w e e n -

MAMDOUH HABIB

Applicant

and

MINISTER FOR FOREIGN AFFAIRS AND TRADE

Respondent

Office of the Registry
Sydney No S112 of 2009

B e t w e e n -

MAMDOUH HABIB

Applicant

and

DIRECTOR-GENERAL OF SECURITY

Respondent

Applications for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 SEPTEMBER 2009, AT 3.50 PM

Copyright in the High Court of Australia

__________________

MR R.T. BEECH-JONES, SC: If the Court pleases, I appear with my learned friend, MR W.B. NICHOLSON, for the applicant in both matters. (instructed by Peter Erman Solicitor)

MR S.B. LLOYD, SC: May it please the Court, I appear with my learned friend, MR A.P. BERGER, for the respondent in both matters. (instructed by Australian Government Solicitor)

FRENCH CJ: Yes, Mr Beech-Jones.

MR BEECH-JONES: Your Honours, in the passport appeal in the Administrative Appeals Tribunal the scheme of the Passports Act was that my client, as an Australian citizen had an entitlement to a passport. That right could only have been denied if the Minister for Foreign Affairs, acting on ASIO’s advice, had been able to persuade the AAT that the objection in section 14 of the Act was made out, in particular, that he represented or that it was likely that he would engage in conduct that would prejudice the security of Australia or a foreign country.

I hesitate to use the word “onus”, but the way the issues were presented to the AAT was that my client had a right to a passport. The question was could the respondents in the AAT justify, under section 14 of the Act, denying him one on the basis of positively persuading the Tribunal that he would be likely to engage in conduct prejudicial to Australian security or that of a foreign country.

The case – and when one talks about cases, the cases presented by the respondent to justify that assertion was that by reason of various items of conduct and communications he was said to be engaged in prior to October 2001, that is prior to his arrest in Pakistan and then his long detention in Guantanamo Bay, by reference to that material he was said to represent a danger to Australian security or that of a foreign country.

Now, I will come to the Tribunal’s reasons, but when the Tribunal came to address the respondent’s case it was confronted with the question of the various things that were relied on by the Minister for Foreign Affairs and by ASIO all occurred a long time ago and it had to ask itself what it was to do with the situation that confronted it in 2007. As part of that process could I take you then, your Honours, to what the Tribunal said, how it dealt with the position as at the time of its decision. At application book page 6 in paragraph 8 the Tribunal in that paragraph identified this problem. It said:

All this activity –

This is the activity relied on –

occurred in and prior to 2001. In these circumstances a question arises as to what relevance it has today.

Then it speculates about whether he is or was not a changed man. In the next paragraph it then addresses finding the adverse view it took of my client and his wife’s credibility and it rejects their credibility, we accept, comprehensively. In the middle of the paragraph it asks:

What is one to do with these circumstances?

It identifies two matters. First, it says:

we must be very careful about accepting uncorroborated evidence of Mr and Mrs Habib.

We accept that is an obvious consequence of the rejection of their credibility. The second is the difficulty. It says then:

it leads to a questioning of the motives of Mr and Mrs Habib.

It speculates about what their motives were, and it concludes with this sentence:

We conclude that the failure of Mr and Mrs Habib to tell the truth leads to an inference that Mr Habib has the same sentiments and intentions now that he had prior to 2001.

I will come back to that, but it returned to that style of reasoning in two other parts of its reasons. At page 25, paragraph 90, it was addressing the question as to whether at the time of its decision in 2007, my client was or was not a supporter of Usama Bin Laden and concludes in these terms:

Given Mr and Mrs Habib’s untruthfulness to the Tribunal in a number of important respects we do not think it is available to them to argue that, now, Mr Habib no longer holds those extreme views. We infer that they –

both of them –

were motivated to be untruthful by the fact that Mr Habib continues to hold those views.

They make that finding. Paragraph 120, page 31 is in a similar vein, perhaps not as stark as those two ones, but a reference to the use of the incredibility, as the Tribunal described it, of my client and his wife’s evidence.

Just stopping there, we would respectfully submit that it is an extreme, indeed, extraordinary proposition to say to someone not, “I used your lies as positive evidence against you”, but, “I use the lies of your spouse”. We referred the Full Court to the authorities which your Honour Justice Bell will be well familiar with about lies, Edwards v The Queen, but none of them even ever touch this type of reasoning which we – and we seek to reject the use of epithets, but we submit is extreme.

In the Full Court of the Federal Court the point argued by my client was narrowed to a submission that there had been a denial of natural justice on the part of the Tribunal in reliance upon this aspect of its reasoning, and in particular the proposition that Mr and Mrs Habib gave false evidence and that that was positive evidence of Mr Habib having the necessary intentions required by the section.

FRENCH CJ: I can understand the bite of that in respect of the use made of the finding about the wife’s evidence. How does it bite in the procedural fairness way in respect of the finding about his evidence, because in S111 you raised that as well, I think, as a separate ground, do you not?

MR BEECH-JONES: Yes. We do. We do not seek special leave on that, but if I could just say as to how it would work in theory, if I could put it this way. It is true that as a matter of theory in criminal trials it is often used, “The accused lied”, but that is usually after a process of analysis that the jury is directed - - -

FRENCH CJ: That is a factual inferential.

MR BEECH-JONES: Yes, you could draw, you have to exclude innocent explanations and all those sort of things, so that if you were to do that you would at least have to conduct some sort of equivalent of that as a way of procedural fairness so that an applicant it would have to be said, “Look applicant, we say your lies are going to be used against you, and what do you have to say about that?” and perhaps a little more elucidation. In the same way that in a criminal trial natural justice is afforded by – usually at some point – the prosecution will say, “We rely on lies”, the trial judge will then discuss with counsel, “What direction will we give?” Counsel for the accused will then debate whether it should be given, and then to the jury, counsel for the accused then has the opportunity to meet that point.

FRENCH CJ: I am sorry, what I was doing was looking at paragraph 2 of your application for special leave. The ground in the draft notice in each case is the same. It focuses on the spouse’s evidence.

MR BEECH-JONES: Indeed, your Honour.

FRENCH CJ: Thank you.

MR BEECH-JONES: Could I take your Honour to how the Full Court dealt with this, beginning at page 64 of the application book. At paragraph 62 it identified two issues:

The first is whether the Tribunal should have disclosed to Mr Habib the use it proposed to make of its conclusions that Mr and Mrs Habib had told untruths. The second issue is whether, if there was an obligation to disclose, it was in fact sufficiently discharged.

The answer the Full Court gave to those two issues, the first one was, yes, in relation to both Mr and Mrs Habib. The answer to the second was it was discharged in relation to Mr Habib, but it was not discharged in relation to Mrs Habib, but then it said no relief. Now, that emerges, if your Honours follow it to - paragraph 73 is the answer to the first question and that is where they said that natural justice required disclosure of that approach and then under the heading “Was the obligation to disclose fulfilled?”, paragraph 75 deals with Mister and that is resolved adverse to my clients. Paragraphs 76 and 77 deals with Mrs Habib and up to the first sentence of 77 it was going swimmingly because the answer was yes and, we would respectfully submit, of course it must in relation to Mrs - bearing in mind that that is the most extreme of the two.

But from that point onwards there are, in about 10 lines, we move from being in that position to losing and the rationale is, with respect to their Honours, a little confusing. The discussion in the second part of the paragraph talks about the discretion to refuse relief in Aala and Stead which is about “Yes, you have a breach, but no, you do not get the remedy”, whereas the first part of it seems to be talking about whether there was a breach. We submit there clearly was, but that is not elucidated.

Then in paragraph 78 we get the answer. The first sentence is it was raised about Mr Habib. The second sentence says, the case was fought on “the footing that the past was indicative of the present”, to which we say, yes, to a point, but this bit of the reasoning was the Tribunal’s own doing, and we were not, as it were, the party making the case. Then we get one sentence that tells us:

We are confident that it would have made no difference to the outcome if Mr Berger –

who was counsel for the respondents –

had invited the Tribunal to draw the impugned inference from Mrs Habib’s evidence as well as Mr Habib’s.

With respect to their Honours, that is it. We are left not knowing why, because on the very least - - -

BELL J: I was just going to take up with you this. If you read paragraph 77 taken with the preceding paragraph as a finding by the Federal Court that there had been a denial of natural justice in relation to the dealing with Mrs Habib’s evidence then you would understand that what the court went on to do was to apply Stead. Are you seeking to canvas the principle in Stead or to say the application of it here was not justified?

MR BEECH-JONES: Can I say a bit of both and can I just say why?

BELL J: Yes.

MR BEECH-JONES: Firstly, we would embrace what your Honour said about the - we see that as the only sensible way of reading it, but I do point out 77 is not clear.

BELL J: Yes.

MR BEECH-JONES: We do not seek to say that neither Stead nor Aala states the correct principle, but that is just the beginning of the inquiry because, bearing in mind this, this was a finding of fact ultimately and they were not two streams of fact. This was not one of those cases one sees with immigration tribunals where they say, “Don’t believe you, but if I did believe you, you can go.....elsewhere in Pakistan”.

This was one stream of reasoning by the Tribunal. That is an unusual context firstly, for any court in judicial review to say there has been a breach of natural justice but it made no difference to the outcome. If it was no difference, why do the Tribunal mention it in the first place? We can think of two possibilities. One is that if Mr Berger had invited the Tribunal to draw the impugned evidence from Mrs Habib’s evidence, the Tribunal would have said, “No, we will not do that” and then reached the same conclusion. If that is what the Full Court meant, that is rewriting the reasons.

If, on the other hand, the Full Court meant, “We would, if Mr Berger had invited the Tribunal to draw the impugned inference from Mrs Habib’s evidence, the Tribunal would have proceeded exactly the same way”, notwithstanding any submission we made to the contrary, then the court has said the finding of ultimate fact would have been the same and we would respectfully submit that type of reasoning has never been undertaken in a case dealing with the discretion to refuse relief by a court exercising judicial review. Stead left open the possibility that could work in a judicial context, but not in a case where the Full Court was not in a position to make findings of fact anyway because it was judicial review.

So that, we would respectfully submit, is why, if I could call the problem, is a very good vehicle because we have a crystallised breach. There is no, on that - what we submit is the proper construction. Yes, we know what the principles are from Stead and Aala, but lurking beneath that bare sentence are some different possibilities about what a reviewing court can do and cannot do when it is confronted with this type of case. We do submit the result was unjust. I hesitate to use the word “visitation” because it has not been very successful today, but it is visitation plus some questions of principle.

Can I just make one further - I anticipate Mr Lloyd is going to read to your Honours an affidavit indicating that since this my client has applied for a further passport. We say that makes no difference to whether this is a suitable vehicle. For this reason, the evidence will also indicate that it has not been determined, and what the consequence of this decision is is that a decision of the President of the AAT and two other members stands as a security assessment concerning my client and without being told he is going to get a passport, which might make things a bit different, that really takes the matter nowhere in terms of suitable vehicle. Unless you have anything further, your Honours, those are the matters we would put.

FRENCH CJ: Thank you, Mr Beech-Jones. Yes, Mr Lloyd.

MR LLOYD: My friend correctly apprehends that I seek leave to read an affidavit which I can pass up to the Court. The thrust of it is that five days before the special leave application, Mr Habib put in another application for a passport and the application is still pending but there are only two possible outcomes. One possible outcome is that he will be granted a passport. I am not suggesting there is a high likelihood of that, but if that were the case, then obviously the matter before this Court would be futile.

The second option is that he will be refused a passport in which case he will have a right to go to the AAT, which is exactly what he is seeking an order from this Court for, that the matter be remitted to the AAT. My friend seems to think that that will not be as good to go to the AAT unless he has the decision of the President set aside, but he already has the advantage of the Full Federal Court saying that the Tribunal made a denial of natural justice and that certain matters were not considered, and so no doubt, when he goes to the AAT, which is what would happen in any event, he goes back to the AAT, he will have an opportunity to put whatever else he wants to do up unto the date of the decision and so we say that the appeal would be futile, and it may well be that the matter will be on in the AAT before any appeal, should special leave be granted beyond here which would then be even stranger if that were to happen.

FRENCH CJ: Is the position any different if he had not applied for a passport? Do you just come along and say he could apply for passport again? Would that not raise all the same considerations?

MR LLOYD: Not necessarily, but I accept it, and my submission is stronger that the fact that he has and that he will be able to be back in the AAT, but I agree that it is different to a situation where, for example, under protection visas you cannot apply again. He can apply again. He can get the matter back to be fully heard afresh in the AAT and he has the advantage of a finding that there was a denial of procedural fairness by the Full Federal Court, so to that extent he has everything that he could get if he won an appeal in this case.

BELL J: Not quite, because here he has a finding that there was a denial of natural justice, but that it would have made no difference to the outcome.

MR LLOYD: On the way that he ran the case, and so he can run his case differently, which is no doubt what he would do if it were remitted. That, we say, goes to the vehicle issue. We also say that the court did not err, first of all as my friend properly and fairly acknowledges, that there is no challenge to the principles in Aala or to Stead. There is only a question as to whether, in the facts of this particular case, after the 20-day hearing, et cetera, this particular matter was wrongly applied and we say that in the circumstances where it just turns on what are very unusual facts of this case, and so there is not going to be any elaboration of principle.

The next point is that we say, in any event, there is no error. My friend says there is no reasoning, but we say there is reasoning. In paragraph 78 the Court says:

We have also drawn attention to the broader context of the matter having been contested on the footing that he past was indicative of the present -

That refers back to paragraph 69, and I would add paragraph 68. In paragraph 68, first of all after having noted how the Minister put the case, the court noted how Mr Habib chose to defend the matter. He did not seek to defend the matter by saying, for example, “Yes, I did all of those things before 2001, and I have changed”. He did not, and this is perhaps more critical, at the end of paragraph 68, defend it by saying, “I say I did not do any of those things, or, to the extent that I did them, the different contextual matters mean that the inferences would not be drawn, and so therefore, even if you think I am lying you should still give me a passport”. He did not put the case in either of those ways, and that is true specifically in a case where, if I could take the Court’s attention to paragraph 36 a submission was put - before Mr Habib got to address the matter, a submission was put. There is a question there by his Honour the President about:

What is the significance of the fact that he lied . . .

MR BERGER: The significance is twofold . . . and secondly, that it reflects upon whether he still poses a threat if he was to go overseas...

...this is a person who has consistently, deliberately maintained that he had nothing to do with those emails whatsoever and that must in my submission cause the Tribunal very real concerns about whether he still continues to have the views expressed in the emails, still continues to have anti-western views, still continues to have extremist views and the like - - -

BELL J: Mr Lloyd, accepting for present purposes that it is open to reason from the circumstance that Mr Habib did not make admissions to matters of past conduct which the Tribunal was satisfied had occurred, and to reason from there that he was not a changed man, accepting that for present purposes, none of that bears on the question of the availability of a line of a reasoning of that sort in relation to his wife’s evidence.

MR LLOYD: No. The way I put the case, and which is the way I think the Full Federal Court reasoned, was this, that he knew that the Minister was asking for the that inference to be drawn from his own lies, and his wife and he had corroborated each other’s evidence throughout the course of the hearing, and so he was in that position, so he then had this choice, at least in relation to himself, am I going to have one of those fallback positions that the Federal Court said, “Even if you think that I am lying, you should still give me a passport”. He did not say that. He repeatedly said, “I’m telling the truth and if you think I’m not telling the truth, don’t give me a passport”. That was how he ran his case.

BELL J: I understand that. It is just the applicability of the same line of reasoning in relation to the wife’s evidence and the rejection of it. There may be a number of reasons including the reason to which the Tribunal referred in the course of its reasons at paragraph 9 on page 6 of the application book, where the Tribunal recognised that one reason for telling lies might be that the authorities would draw an adverse inference from one’s past conduct. That was a view that the Tribunal entertained at that earlier point in their reasons. One can think of a number of reasons why a wife might tell lies in a circumstance such as this which would not be supportive of a conclusion that her husband continued to entertain particular views.

MR LLOYD: That may be so, your Honour, but our point, and we think what the Full Federal Court said was he knew that in relation to himself he could have either said, “I’m just telling the truth” and accept that, or alternatively, “Even if you think I am lying, I am not lying for the reasons they say”. Now, he did not say that. Once he has chosen himself to say, “I am only telling the truth”, then in relation to himself it is no longer up to him where his wife has just corroborated his own evidence. It is not like he could say, “She was lying in order to support me, but I am still telling the truth”, because they were intermeshed. So once he has chosen - - -

FRENCH CJ: As I understand it, what you are saying is he has taken a line that he is telling the truth. He is not offered as a fallback position that he can get a positive result notwithstanding that he has been lying, and that once he has taken that position, whatever adverse inferences are drawn from the wife’s evidence do not make any difference.

MR LLOYD: That is so.

FRENCH CJ: In other words, he is not any worse off than he has already implicitly accepted by not running the argument that you say he could have run.

MR LLOYD: Yes, and he had the chance to run that argument because at least that line of reasoning was raised with him in relation to his own lies, and having repeatedly said his case is done on the basis of his own honesty then it would not have made a difference whether the matter in relation to the wife had been raised with him or not because he ran his case on that basis. That is how we construe the reasoning of the court, which is perhaps a slightly different version to the two options that my friend put.

The only other thing I would say is my client would say that there was not a denial of natural justice in any event and should the Court be minded to give a grant of special leave, my client should flag that it would propose to put on a notice of contention.

FRENCH CJ: Thank you, Mr Lloyd. Yes, Mr Beech-Jones.

MR BEECH-JONES: That last point, your Honour. The first thing my friend, I think said, was to the effect what we think the Full Court said and we all have to engage to in a lot of crystal ball gazing and interpolation as to what it was that the Full Court did to effectively rewrite what the Tribunal said. The Tribunal did not limit itself to Mr Habib. It went the next step further, and drew adverse inferences in relation to Mrs Habib.

The second thing to note is, and as we put in the submissions, Mr Habib had another - a friend who acted effectively as an advocate before the Tribunal, so that he was not solely in the position of some unrepresented litigant who always tend to put submissions that sometimes do not assist themselves, and if the proper process of this argument had been raised out, to whit, we contend that Mrs Habib was lying because she knew her husband had these terrible motivations, a number of responses would have come to which the obvious answer is, “Well, that is a pretty extreme position to take, there are a number of other explanations. To whit, she simply wanted to support her husband in getting a passport”. Further, depending on the sophistication of the advocate, “Why did you not put that to Mrs Habib in her evidence?”, not done, and so forth, but it gets back to this fundamental difficulty that what my friend has done is picked up the Full Court’s reasons, tried to expand out that one short sentence, and when you do, it turns out what we are saying is we have thrown out the Tribunal’s reasons and we have come up with some of our own. We would respectfully submit, on judicial review, that is the one thing we cannot do.

The only other thing we would say about the question of the other passport application is it may be that he has a finding of denial of procedural fairness, a denial that the respondents apparently do not accept, but he has also, in our respectful submission, got the Full Federal Court giving some sort of imprimatur to the ultimate refusal by the Tribunal in

circumstances where, we respectfully submit, we do not know why. Those are the only matters we wish to say by reply.

FRENCH CJ: Thank you, Mr Beech-Jones. There will be a grant of special leave. This case should not take longer than a day, should it?

MR BEECH-JONES: No, your Honour, it will have to be disciplined to the application book because of the transcript, but yes.

FRENCH CJ: Thank you. The Court will now adjourn briefly to reconstitute.

AT 4.20 PM THE MATTER WAS CONCLUDED