Re Refugee Review Tribunal; Ex Parte Aala

[2000] HCA 57

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(Judgment by: Mchugh J)

Re Refugee Review Tribunal; Ex Parte Aala

Court:

Judges: Gleeson CJ
Gaudron J

Mchugh JGummow J
Kirby J
Hayne J
Callinan J

Subject References:
Immigration
Refugees
Review Tribunal
Failure to afford procedural fairness
Prosecutor de-nied opportunity to be heard on matters affecting credibility
Whether prosecutor denied possibility of a successful outcome
Administrative law
Constitutional writs
Nature of Constitutional writ of prohibition
Procedural fairness
Availability of writ of prohibition for failure to accord procedural fairness
Whether prohi-bition available as of right or by discretion
Whether application should be rejected due yto delay
Constitutional law
Construction of Constitution
Meaning to be given to words in s75(v)
Rele-vance of meaning at time of commencement of Constitution
Words and phrases
'a writ ... of prohibition', 'procedural fairness', 'prerogative writ'

Legislative References:
Constitution - s 75(iii); s 75(v)
Migration Act 1958 (Cth) - The Act

Case References:
-

Judgment date: 16 November 2000

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Judgment by:
Mchugh J

[85] This case shows how the failure to define terms can sometimes lead to breaches of the rules of natural justice. The Refugee Review Tribunal told an applicant for a visa ("the prosecutor") that it had "all of the Federal Court papers". Perhaps the Tribunal meant the orders and the reasons for judgment given in the Federal Court in earlier proceedings brought by the prosecutor. But among the documents used in that Court was an appeal book which contained four statements made by the prosecutor. Those statements were not before the Tribunal. Their contents were consistent with evidence which the prosecutor later gave in the Tribunal but which the Tribunal thought was "concocted". That being so, the prosecutor contends that the Tribunal denied him natural justice.

[86] The present proceedings are brought in the original jurisdiction of the Court to make absolute orders nisi for writs of mandamus, prohibition and certiorari. Three issues arise in the proceedings. First, whether the Refugee Review Tribunal breached the rules of natural justice. The rule alleged to have been breached is the fair hearing (or audi alteram partem) rule. In substance, the prosecutor claims that the Tribunal did not take into account the four statements and had misled him into believing that it would consider those statements. If a breach of the fair hearing rule has occurred, the second issue is whether, but for the breach, the prosecutor would have obtained a visa. If the answer to both these issues is yes, the third issue is whether a breach of the rules of natural justice by the Tribunal member as an "officer of the Commonwealth" attracts the constitutional writs of mandamus and prohibition in s75(v) of the Constitution.

[87] In my opinion, the Tribunal breached the fair hearing rule because it prevented the prosecutor from fully putting his case in support of his application. But, unfortunate though that breach was, it did not affect the decision of the Tribunal ^[128] . That being so, the prosecutor fails on the second issue and is not entitled to relief under s75(v) of the Constitution.

The factual and procedural background

[88] The proceedings are prosecuted by Mansour Aala who was born in Iran. In 1991 he left Iran and arrived in Australia. Shortly after arrival he married an Australian citizen. He applied for, but was refused, a spouse visa. In August 1996, he applied for a protection visa claiming that he was a refugee because he had a well-founded fear that, if returned to Iran, he would be persecuted on the ground of political opinions that would be imputed to him. In October 1996, a delegate of the Minister for Immigration and Multicultural Affairs refused his application. Subsequently, the prosecutor asked the Refugee Review Tribunal to review the Minister's decision. In December 1996, the Tribunal ("the first Tribunal") affirmed the Minister's decision. In judicial review proceedings in the Federal Court, Beaumont J dismissed the prosecutor's application to set aside the first Tribunal's decision. But a Full Court of the Federal Court allowed the prosecutor's appeal and remitted the matter to the Refugee Review Tribunal to be determined according to law.

[89] Before the first Tribunal, the prosecutor claimed that, if he was returned to Iran, he would be persecuted for political opinions imputed to him because of activities in which he had been involved in that country before arriving in Australia in 1991. Those activities fell into three categories:

(1)

working for the Savak organisation (the deposed-Shah-of-Iran's secret police);

(2)

supporting the Mujahadeen who opposed the Iranian government; and

(3)

illegally selling real estate owned by the Shah and his supporters.

[90] In this Court, attention has focused on the third category, the findings against the prosecutor concerning the first and second categories being unchallengeable. The prosecutor told the first Tribunal that he and a business associate, Ali Tehrani, had illegally sold real estate for the Shah and his supporters. As a result of visits to his office in 1990 by the Komiteh (a State-controlled enforcement agency), the prosecutor and Tehrani discussed leaving Iran. In 1991, the prosecutor obtained a passport and left for Australia. He accepted that the Komiteh must not have been able to prove anything against him before he left Iran in 1991; otherwise, he would not have been able to obtain a passport.

[91] The first Tribunal was not satisfied that there was a real chance that Tehrani had told the authorities in Iran about the prosecutor's illegal sales dealings. Nor was it satisfied that Tehrani's premises contained anything that might have implicated the prosecutor in activities "warranting serious punishment". It concluded that, if the prosecutor was deported to Iran, he would not face a real chance of persecution because of his real estate dealings.

[92] After the first Tribunal's decision, the prosecutor sent four hand-written statements to the Federal Court. They were dated 14 January 1997 ("the first statement"), 30 January 1997, 11 August 1997 and 30 September 1997 respectively. The first statement was attached to the application for review filed with the Federal Court on 15 January 1997. The other three statements were received by the Federal Court, but in what circumstances is unclear. The evidentiary status of all four statements is also unclear.

[93] In the first statement, the prosecutor claimed for the first time that he had agreed with Tehrani that, if Tehrani was investigated after the prosecutor had left Iran, Tehrani should disclose incriminating information about the prosecutor to try to help himself. In that statement, the prosecutor also claimed for the first time that Iranian friends had told him of the circumstances of Tehrani's arrest, namely that Tehrani had been arrested after he had illegally attempted to sell property to a member of a government organisation. The prosecutor claimed that the Komiteh would have searched Tehrani's office after his arrest and would have found copies of contracts for illegal sales organised by the prosecutor. He also claimed for the first time that his name appeared on those contracts. It is convenient to refer to these matters as the "new explanations". The statements of 30 January, 11 August and 30 September 1997 repeated these new explanations but they did not significantly add to them.

[94] The reasons of Beaumont J indicate that his Honour probably read the first two statements before he dismissed the prosecutor's application for judicial review. Whether or not that is so, all four statements were included in the appeal book used in the appeal to the Full Court of the Federal Court, and the prosecutor was entitled to believe that that Court had considered the new explanations.

[95] After the matter was remitted to the Refugee Review Tribunal by the Full Court, the prosecutor again gave evidence before the Tribunal ("the second Tribunal"). During that hearing, the member who constituted the second Tribunal said to him that she had the "Department of Immigration file and your old Refugee Tribunal file and your new Refugee Tribunal file plus all of the Federal Court papers." She told the prosecutor that she had "read everything that's in all of those files." Just before concluding the hearing, the Tribunal member told the prosecutor that she would "consider everything that you've told me and everything in all of your other statements and the evidence which you gave in your other interviews".

[96] In April 1998, the second Tribunal affirmed the Minister's decision to refuse the protection visa after examining all three categories of activities - working with the Savak, supporting the Mujahadeen, and illegally selling properties - which the prosecutor claimed made his fear of persecution well-founded.

[97] In its reasons, the second Tribunal said that, prior to the second Tribunal hearing, the prosecutor had never claimed that he and Tehrani had agreed that Tehrani would pass on information about the prosecutor to save himself, nor had he claimed that he knew of the circumstances and the real estate transaction that led to Tehrani's arrest, nor had he claimed that a search of Tehrani's premises would have revealed that the prosecutor had illegally sold properties.

[98] These claims had been included in the new explanations contained in the four statements. In subsequent proceedings in the Federal Court, the Minister conceded that none of those statements were before the Tribunal. That being so, the prosecutor asserts that he has been denied a fair hearing of his case because the Tribunal represented to him that it would take the new explanations into account and it did not. Furthermore, in this Court the prosecutor gave uncontested affidavit evidence as to what he would have done if he had known that the Tribunal did not have the four statements. He said that, if the Tribunal had put to him that he had not given the relevant evidence before the second Tribunal hearing, he would have replied that he had done so "on more than one occasion, that it was in writing and available for consideration by the Tribunal." He also asserted that he had not elaborated on the material at the Tribunal's hearing because he "believed that the Tribunal had read the material and accordingly taken it into account."

[99] If the Tribunal had taken the new explanations into account, it might not have concluded that the prosecutor had "concocted this evidence" and might not have refused to accept the prosecutor's evidence concerning the agreement with Tehrani. But assuming that that is so, was this denial of a fair hearing? And, if it was, did it affect the outcome of the case?

Breach of the fair hearing rule

[100] If the second Tribunal had simply failed to take into account the "Federal Court papers", it would not have breached the fair hearing rule. Its function was to consider the case put to it by the prosecutor. He had the responsibility of putting the contents of the four statements to the second Tribunal. If he failed to do so, no blame could be attached to the Tribunal for not taking them into account. But the Tribunal did more than fail to take account of evidence which the prosecutor should have put before it. It found that he had concocted evidence without informing him that it might do so and without indicating to him that that finding might be made.

[101] One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding ^[129] .

[102] In the present case, the prosecutor was given no warning that the second Tribunal might find that he had concocted his evidence. But the risk of that finding inhered in the issues and in his various accounts of the real estate transactions. Given the issues and the inconsistency between what the prosecutor told the delegate and the first Tribunal and what he told the second Tribunal, he could not complain that the Tribunal did not warn him that it might reject his evidence concerning the incriminating contracts and the Tehrani agreement. Nor did the more serious finding of concoction require a warning that it might be made. The prosecutor had given inconsistent accounts. The second account was much more favourable to his case. It was given after his first account had failed to persuade the first Tribunal that he had a well-founded fear of persecution. Because that is so, it was a distinct possibility that the second Tribunal might find that his later account was concocted.

[103] But the fair hearing doctrine also requires that the Tribunal should not mislead an applicant concerning the evidence that should be led or that will be taken into account. Here the second Tribunal effectively told the prosecutor that it would take into account the material in the four statements. It did not do so. And the prosecutor has sworn that, but for being misled, he would have elaborated on the material at the hearing. He was therefore denied the opportunity to put his whole case to the Tribunal. In that respect, he was denied a fair hearing.

The breach of the fair hearing rule did not affect the Tribunal's decision

[104] Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission ^[130] when it said that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial." Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because "[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome" ^[131] . In this case, however, the denial of natural justice did not affect the outcome. After analysing the reasons of the second Tribunal and the history of the proceedings, the best conclusion is that the Tribunal would have found that the prosecutor did not have a well-founded fear of persecution even if it had had the four statements before it.

The second Tribunal's reasons

[105] Although the second Tribunal concluded that the prosecutor had concocted part of his evidence and did not accept his evidence concerning an agreement with Tehrani, it considered what the Iranian authorities might do if they became aware of the prosecutor's illegal dealings in property. And it did so before it made the adverse findings concerning the prosecutor's credibility. It asked itself whether the illegal activities of the prosecutor - which it assumed had occurred - "would be likely to cause the authorities to impute a political opinion in the [prosecutor] which may bring him within the Convention." It held that the authorities would not impute those opinions to him even if they knew of his dealings. The Tribunal thought that the prosecutor was motivated by financial gain and not political sympathy in selling the properties, saying that he "was involved in the sale of properties for the Shah purely because of the large commissions he was able to earn." The Tribunal found that it was so clear that the prosecutor had not been driven by political motivations that there was no possibility that his actions in facilitating the sale of properties owned by the Shah and his associates would be seen as political.

[106] The Tribunal thought that assisting in the sale of properties of the Shah and his supporters was not itself sufficient to be regarded as a political risk to the authorities. It said that there was no evidence, apart from that of the prosecutor, that suggested that persons facilitating sales of property for the Shah or his associates were imputed with a political opinion in Iran. Accordingly, the Tribunal found that there was "only a very remote chance that the [prosecutor] would be imputed with a political opinion in support of the Shah."

[107] Furthermore, the Tribunal noted information from independent sources that suggested that former supporters of the Shah had started to return to Iran. Other information provided by the Department of Foreign Affairs and Trade suggested that even those Iranians who still had monarchist leanings were not taken seriously and did not experience any significant difficulties unless they were politically active. The Tribunal thought that, because the prosecutor did not claim to have been, or to have been seen as, a supporter of the Shah, his past activities would not occasion any difficulties.

[108] Only after concluding that the Iranian authorities would not impute political opinions to the prosecutor did the second Tribunal deal with the alleged agreement between the prosecutor and Tehrani and with the claim that an investigation after a search of Tehrani's premises would have incriminated the prosecutor. The Tribunal refused to accept that there was any agreement that Tehrani would tell the authorities about the prosecutor. That was because the prosecutor had never asserted any agreement of that sort until the second Tribunal hearing. The Tribunal also held that the claim that an investigation would incriminate the prosecutor was "pure speculation and largely concocted." Although he had told the second Tribunal that his name appeared on contracts which the authorities would have found in Tehrani's office, he had "told the first Tribunal that his name never appeared on sales contracts." Moreover, the Tribunal said:

"[E]ven if the Tribunal accepts that Ali Tehrani did inform the authorities about the [prosecutor's] involvement in the sale of properties for the Shah and his associates, the Tribunal has already found above that the [prosecutor] does not have a well-founded fear of persecution for reasons of this or any of his past activities. Consequently, the Tribunal finds that the [prosecutor] does not have a well-founded fear of persecution for reasons of his association with Ali Tehrani."

[109] The second Tribunal drew together its findings on all three categories of activities - working with the Savak, supporting the Mujahadeen, and illegally selling properties - and concluded:

"In sum, the Tribunal is not satisfied that there is a real chance that any of the [prosecutor's] past activities, considered individually or cumulatively, would bring him to the adverse attention of the authorities for any Convention reason. The Tribunal is not satisfied that the [prosecutor] has a well-founded fear of persecution in Iran for a Convention reason."

[110] Given the reasons of the second Tribunal, the question whether the breach of the fair hearing rule might have affected the decision of that Tribunal turns on two questions. First, would the adverse findings concerning the prosecutor's credibility have been made if the Tribunal had known that the prosecutor had raised the new explanations before the second hearing? Second, if so, would the second Tribunal still have found against the prosecutor on the issue of imputed political opinion if it had known that the prosecutor had given the new explanations more than twelve months before the second Tribunal hearing?

The prosecutor's credit was not affected by the Tribunal's mistake concerning the time when the new explanations were first given

[111] The second Tribunal's views as to the prosecutor's credit were influenced by the delay in giving evidence about the Tehrani agreement and about the existence of documents (contracts with his name appearing on them) implicating him in illegal sales. On several occasions, it mentioned that the prosecutor had not given this evidence "prior to the second Tribunal hearing". But would it have made any difference if the Tribunal had known that he had given this evidence prior to the second hearing? What was significant was not the precise date of the new explanations, but that the prosecutor had not given them until after the first hearing and that his new explanations were not reconcilable with the account that he had given at the first hearing or to the delegate. Moreover, in so far as the prosecutor claimed that he would be incriminated because his name was on the sales contracts, the second Tribunal pointed out that he had said the opposite to the first Tribunal.

[112] The basis for fearing persecution that he gave to the second Tribunal differed significantly from that which he gave to the delegate. In the delegate's reasons for decision in October 1996, the delegate said:

"In his initial statement, the [prosecutor] stated that after his arrival in Australia, one of his sisters in Iran has informed him that the Komiteh have been looking for him. The Komiteh has also arrested some of his colleagues and that, Ali Tehrani being one of those arrested, has been executed for his involvement in the sale of real estate belonging to dignitaries under the Shah and the transfer of the proceeds of these sales outside Iran.

At interview, the [prosecutor] explained that [about two years before the interview took place] he had spoken to one of his real estate agents friends in Tehran, who had told him then that Ali Tehrani was executed a few months earlier that year. He explained that Ali Tehrani was another real estate agent with a large company in Tehran, who had sold illegal properties. He said that ... he had tried to contact some of his real estate friends but there was no answer to his calls and he suspects that they may have been arrested. He fears that they may have revealed his identity under interrogation."

[113] The first Tribunal also had a statutory declaration of the prosecutor which was not reconcilable with the account that he gave to the second Tribunal. The prosecutor stated in that declaration:

"However, as far as I already stated Ali Tehrani was executed for his involvement in the sale of real estate to Shah dignitaries. I am sure the Iranian authorities have investigated my activities in relation to the sale of illegal properties through him.

...

However, when Ali Tehrani had been arrested and executed by the Iranian authorities in relation to his past work, after having the real chance to face persecution, all information of my past works and himself must had been released to the Iranian authorities through Ali Tehrani. That is why the Komiteh is looking for me".

[114] In December 1996, the prosecutor told the first Tribunal:

"And then I called some other friends. They told me ... Ali Tehrani has been faced persecution and he was executed by the Iranian authorities. I know why: because he was doing the illegal selling of the confiscation properties. So by - so at this stage I am sure the Iranian authorities should - they took a lot of information from Ali from his business. And also my business, perhaps, because I was working with - we were working together. So that's why - that's why I am sure the Iranian authorities have information about my past illegal activities of the selling ... So that's why I am sure if I return to Iran I will face persecution. And they will take lot of information off me as they have taken from Ali Tehrani and then they will execute me."

[115] None of these statements mentioned the agreement with Tehrani. Nor did they mention the transaction which he later claimed led to Tehrani's arrest and execution. None of the statements is reconcilable with the new explanations. I do not think that it would have affected the Tribunal's comments concerning the prosecutor's credibility if it had known that he had first proffered the new explanations to the Federal Court in January 1997 and not to the second Tribunal in March 1998. What was destructive of the prosecutor's credibility was the contrast between his accounts to the delegate and the first Tribunal and his new explanations given for the first time after the delegate and the first Tribunal had rejected his claim for a protection visa. Of particular significance was his claim at the second Tribunal hearing that his name was on the contracts which he alleged would have been found at Tehrani's premises and his statement to the first Tribunal that his name did not appear on the contracts. I do not think that it would have made the slightest difference to the Tribunal's findings if it had known that he had proffered these new explanations to the Federal Court. That showed only that he had raised his new explanations in January 1997 and not in March 1998. It did not restore the destruction of his credit that resulted from his inconsistent and irreconcilable accounts.

The finding as to the prosecutor's credit did not affect the Tribunal's decision that there was no well-founded fear of persecution

[116] But even if, contrary to my view, the second Tribunal would not have made adverse findings concerning the prosecutor's credibility, I am satisfied that the Tribunal would still have found that he did not have a well-founded fear of persecution for imputed political opinions. Despite its findings concerning the Tehrani agreement and the incriminating documents, the Tribunal examined whether the prosecutor would face persecution if the authorities had become aware of his illegal real estate dealings. It held that he would not. It said:

"There is no evidence before the Tribunal, apart from the [prosecutor's] own claims, to suggest that real estate agents, or any person, caught facilitating sales of property for the Shah or his associates for profit are imputed with a political opinion in Iran."

Moreover, the Tribunal had cogent evidence before it from which it could conclude that the authorities would not persecute the prosecutor for his real estate dealings.

[117] But might the Tribunal have acted on the prosecutor's "claims", despite the other evidence, if it had not made adverse findings concerning his credibility? I do not think so. The countervailing evidence was too strong. In its reasons for decision, the Tribunal noted independent evidence that many people with royalist sympathies did not now, years after the deposing of the Shah, experience difficulties if they did not express those views "too publicly". Further, the Tribunal noted independent evidence that in recent years the authorities had adopted a far more relaxed attitude and that many former senior figures in the Shah's government and/or family members had returned to Iran with impunity. In fact, self-declared monarchists did not appear to be taken very seriously as long as they desisted from political activism.

[118] The Tribunal took account of an article which stated that many former supporters of the Shah and former Mujahadeen supporters were beginning to return to Iran with impunity. The article noted that people who ran the country under the Shah had been cautious about coming back. But the regime now appeared to be making it easier for them to return. The article said that, to general amazement, "the all-powerful Bonyad" had admitted in March 1992 that many convictions, made in the absence, of those running Iran for the Shah were unsound and that the confiscation of their property had been unlawful.

[119] The Tribunal also had a report of the Department of Foreign Affairs and Trade which described the classes of persons who might be persecuted by reason of imputed political opinions. Significantly, the report said:

"Those individuals who had in the past simply been briefly and in a relatively minor capacity, associated with anti-regime activities or demonstrations, had been briefly detained and imprisoned and were now living freely in society could not be considered as having an imputed political profile."

[120] The prosecutor did not fall within any of the categories of persons who were likely to have "an imputed political profile". Even if he could be categorised as having been "associated with anti-regime activities", the Tribunal found for good reasons that he was "clearly driven by financial motives and not by political motives." Given the Tribunal's acceptance of the change of attitude to supporters of the former Shah, I do not think that it is remotely possible that, if the Tribunal had known of the existence of the four statements, it would have found that the prosecutor had a well-founded fear of persecution for political opinion if he were returned to Iran.

[121] The second Tribunal assumed in favour of the prosecutor that Tehrani had been executed for illegally selling the Shah's real estate and that he would have told the authorities that the prosecutor was involved in those sales. Yet it still concluded that the prosecutor did not have a well-founded fear of persecution for political opinion. It took the view that his activities before August 1991 no longer gave rise to a well-founded fear of persecution, if they ever had. I do not think that it would have changed its conclusion if it had known that the prosecutor had first made the new explanations in January 1997 and not in March 1998. On any view of the case, the credibility of the prosecutor was compromised by the inconsistency between the accounts given to the delegate and the first Tribunal and the account given in the four statements and in evidence to the second Tribunal. Although the Tribunal said that there were only the prosecutor's claims to suggest that those facilitating sales of property for the Shah or his associates for profit were imputed with a political opinion in Iran, there is no reason to think that the Tribunal would have changed its conclusion on this issue if it had known of the four statements. There is no realistic possibility that knowledge of the statements would have so altered the Tribunal's view about the prosecutor's credibility that it would have acted on his claim about those involved in illegal real estate transactions despite the conclusions which it drew from other evidence concerning the changes in Iran.

Conclusion

[122] Accordingly, breach of the fair hearing rule did not deprive the prosecutor of the possibility of a successful outcome ^[132] . Even if the second Tribunal had read the prosecutor's accounts in the four statements, it would still have found that he did not have a well-founded fear of persecution by reason of his assumed connection with Tehrani. The contrary and unsupported assertion of the prosecutor - who had been away from Iran for nearly seven years - was overwhelmed by the weight of evidence from independent sources. Because the breach did not affect the outcome, the rules of natural justice do not require the setting aside of the second Tribunal's decision. To hold that they did would mean that, whenever a breach is proven, the impugned decision should always be set aside. But this is contrary to principle and to what this Court expressly said in Stead ^[133] .

Order

[123] I would grant the extension of time in which to make the application seeking a writ of certiorari. But I would refuse the application to make absolute the orders nisi for prohibition, mandamus and certiorari which I granted on 21 December 1999. I would dismiss the application with costs.