Habib v Director-General of Security - [2009] FCAFC 48 - FCAFC 2009 case summary — Zoe

CTHFCAFC

Habib v Director-General of Security

[2009] FCAFC 48

Federal Court of Australia (Full Court)|2009-04-24|Before: Black CJ, Lander JJ

View original source

At a glance

Source facts

Court

Federal Court of Australia (Full Court)

Decision date

2009-04-24

Before

Black CJ, Lander JJ

Source

Original judgment source is linked above.

Judgment (81 paragraphs)

[1]

THE COURT: 1 These proceedings concern two applications by way of appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal"), sitting in both its General Administrative Division (NSD 1039/2008) and its Security Appeals Division (NSD 2303/2007). The decision was handed down on 1 November 2007 and affirmed a decision of the respondent in NSD 1039/2008, the Minister for Foreign Affairs and Trade ("the Minister"), to refuse an application by the applicant, Mr Habib, for the issue to him of a fresh Australian passport. The Minister's decision had been based on an adverse security assessment made by the Australian Security Intelligence Organisation ("ASIO"). Pursuant to s 54 of the Australian Security Intelligence Organisation Act 1979 (Cth) ("ASIO Act"), the applicant also sought a review by the Tribunal of the adverse security assessment. The Director-General of Security was named as respondent in NSD 2303/2007 in accordance with s 39A of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"). The Tribunal also affirmed the adverse security assessment.

[2]

Background 2 The applicant is an Australian citizen who was born in Egypt. In early October 2001 he was detained in Pakistan as a suspected terrorist. After being held in Egypt and, for a short time, at the United States' Bagram Airforce base in Afghanistan, he was, in May 2002, transferred to the United States' detention facility at Guantanamo Bay in Cuba. He was eventually released in 2005 without any charges having been laid against him and returned to Australia where he was notified that the Minister had cancelled his Australian passport. Later, on 28 November 2006, the Minister refused, under s 14(2) of the Australian Passports Act 2005 (Cth) ("the Passports Act"), to issue the applicant with a fresh passport. 3 The Tribunal in its reasons expressed disquiet about the treatment to which the applicant claimed to have been subjected during the period of his detention, noting that it was common ground that, when interviewed at Guantanamo Bay by representatives of the Department of Foreign Affairs and Trade, ASIO and the Australian Federal Police, he had been manacled and shackled, with the manacles and shackles linked by a chain around his waist which extended to the floor to which it was fixed: Re Mamdouh Habib and Minister for Foreign Affairs and Trade; Re Mamdouh Habib and Director-General of Security [2007] AATA 1908 at [4]. 4 After acknowledging that it was not bound by the rules of evidence, the Tribunal went on at [6] of its reasons to make these observations about the weight to be given to confessional statements made by the applicant during his detention overseas: However, we must determine what weight should be given to the statements which are relied upon, having regard both to the circumstances of the interviews in which they were made and the whole surrounding circumstance of the prior treatment of Mr Habib. Although the exclusionary rules of evidence relating to confessions do not apply, we must have regard to the fact that an important underlying principle supporting those rules is that anything which undermines the voluntariness of a confession also undermines its reliability. Counsel representing the respondents has not been able to find any authorities dealing with the use of admissions before administrative review tribunals. In the circumstances we think it is a matter for wise discretionary decision-making. We must make the preferable decision about whether to give weight, and if so, what weight, to the material before us. To undertake that task we must consider the circumstances of the interviews as well as their content and context together with other relevant material. 5 The Tribunal then noted that the evidence disclosed various activities in which Mr Habib had engaged which indicated contact with individuals and support for an organisation, Lashkar-e-Tayyiba ("L-e-T"), which was antithetical to the interests of Australia. It was acknowledged that all those activities had occurred in or before 2001 which was said, at [8], to give rise to a question: … as to what relevance it has today. Mr Habib has undergone a number of experiences since that time which may have made him a changed man. It is also important to remember that these activities preceded the invasion of Afghanistan and Iraq. Conditions were not the same as they are now. 6 The Tribunal then, in a passage which is central to the present appeal, indicated the use that it considered could be made of certain untruths that it found had been told by Mr Habib and his wife (at [9]-[10]): 9. The problem is that both Mr and Mrs Habib did not always tell the truth in their evidence about Mr Habib's activities. They denied knowledge of the notebook. They denied that it was found at their home. They denied that Mr Habib sent e-mails or that Mrs Habib or someone else sent them on his behalf. The evidence comfortably satisfies us that both claims are true. What is one to do with these circumstances? First, it means we must be very careful about accepting uncorroborated evidence of Mr and Mrs Habib. Secondly, it leads to a questioning of the motives of Mr and Mrs Habib. The explanation for their not telling the truth may have been that, although Mr Habib has no present intentions of engaging in any activity overseas prejudicial to the security of Australia or a foreign country, they thought that the earlier conduct might of itself be sufficiently adverse to warrant passport cancellation. However, we think it is more than that. 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.

[37]

21 The Tribunal then explained why it did not accept the evidence of either Mr Habib or his wife in relation to the e-mails or the notebook and concluded, at [47] of its reasons, in relation to the evidence directed to those matters: These untruths make us wary of Mr and Mrs Habib's uncorroborated evidence. We consider that where their evidence conflicts with that of the respondents and there is no other evidence to support their version of events, we must prefer the evidence of the respondents. 22 The Tribunal next considered the authenticity of the e-mails, transcripts of telephone conversations and the notebook. Although it noted evidentiary deficiencies about the recovery of the text of the e-mails from the hard-drive of the applicant's computer, the Tribunal expressed itself as satisfied that the e-mails were authentic. It also accepted that telephone conversations between Mr Habib and his wife had been correctly recorded and that an English translation of the conversations as contained in a transcript in evidence was accurate. The findings in relation to the transcripts were made despite Mr Habib's having disputed the date on which the most critical conversation had occurred and Mrs Habib's taking issue with certain details of the interpreter's version of the same conversation. Similarly, the Tribunal was satisfied that "the notebook is authentic and contains much of Mr Habib's handwriting, even though not all of it may be his" (at [57]). 23 The Tribunal then turned to consider the weight to be given to the admissions which had been made by Mr Habib in the course of interviews in Pakistan and Afghanistan. It noted that there was no evidence to contradict Mr Habib's account of the treatment to which he had been subjected successively in Pakistan, Egypt and Guantanamo Bay. The Tribunal noted his description of physical and psychological abuse which it considered "could only be described as torture" (at [60]). Despite that characterisation of the general treatment meted out to Mr Habib, the Tribunal concluded that, for its purposes, some weight could be attached to statements made by him in the course of an interview or interrogation conducted at Guantanamo Bay on 15 May 2002. The degree of weight which the Tribunal accorded to statements made in the course of that interview and the reasons for giving them any weight at all are explained in this passage from the Tribunal's reasons (at [76]-[81]): 76. We are conscious that certain inducements appear to have been held out to Mr Habib during the course of some interviews. For example, in the interview at Guantanamo Bay on 15 May 2002 Mr Habib was told:

[47]

28 As to the alleged attendance of Mr Habib at L-e-T training camps and al-Qa'ida information courses, the Tribunal relied on much the same evidence as is summarised at [26]-[27] above. It noted Mr Habib's acceptance in cross-examination that L-e-T was a part of Markaz-ud-Dawa and that the e-mail described at [101] of the Tribunal's reasons had been addressed to "dawacenter." It also referred to Mr Habib's reply in answer to a question in the course of the interview of 15 May 2002 that Tahir Rabbani was in charge of L-e-T and that they called themselves mujahadeen. As well, the Tribunal relied on Mr Habib's alleged admission in the same interview that he had obtained from L-e-T the notebook described at [18(b)] above and that there had been at the L-e-T premises weapons and books and some people studying and he had made some notes about weapons in the book he found there. This evidence satisfied the Tribunal that Mr Habib had attended an L-e-T training course in 2000. 29 The Tribunal found that accounts which Mr Habib gave to the Tribunal about his presence in Afghanistan in 2001 were confused and inconsistent with statements which he had made in the course of the interview at Guantanamo Bay on 15 May 2002. It seemed to regard the latter statements as more likely to have been true and concluded, at [115] of its reasons: We find that a course, possibly run by al-Qa'ida, was being conducted at the guesthouse while Mr Habib was there. We also find that he took part in some aspects of it. 30 The Tribunal also relied on the conclusion just quoted and the evidence on which it was based to find, at [116] of its reasons, that "there is evidence to support the ground that, on 11 September 2001, Mr Habib was in the proximity of senior al-Qa'ida members". However, the Tribunal expressly declined to find that Mr Habib had prior knowledge of, or had been implicated in, the 11 September attack. The Tribunal did not refer, in relation to its conclusion on Mr Habib's alleged attendance at L-e-T training camps or al-Qa'ida information courses or his proximity to senior al-Qa'ida members, to the false denials or untruthful evidence which it found to have been given to the Tribunal by Mr Habib or his wife. 31 The Tribunal, in conclusion, referred to the assessment of the Director-General of Security that, were Mr Habib to travel overseas, he would be likely to engage in conduct that might prejudice the security of Australia or a foreign country. The conduct which the Director-General had imputed to Mr Habib was "associating with or supporting a terrorist organisation, including participating in acts of politically motivated violence, or preparation for such acts" (at [118]). The Tribunal found the Director-General's opinion to be sound. Although it acknowledged at [119] that considerable time had passed since Mr Habib's activities before his detention in 2001: It would have been available to him to argue that he no longer has an interest in armed struggle or in developing connections with extremists overseas, that all the time that has passed and his experiences since then make his pre-2001 activities, and the sentiments he expressed then, irrelevant to the question of what threat he would pose now, were he to travel overseas. Had that argument been made to us and had Mr Habib been a truthful witness, we would have given close and sympathetic consideration to it. 32 Although it did not consider that the argument suggested in that passage had been relied on by Mr Habib, the Tribunal apparently regarded it as unlikely to have been persuasive had it been advanced. It concluded, at [120]-[122] of its reasons: 120. However, the clear incredibility of Mr and Mrs Habib's evidence to the Tribunal in relation to the e-mails, their telephone conversations and the notebook make us doubt their evidence in other respects. We do not believe that Mr Habib has discarded or modified the views he had at that time or that he no longer harbours a desire to join in the type of jihad described in the e-mails he, or his wife on his behalf, wrote. In the context of the matters with which we are concerned in these applications, we are drawn to the conclusion that Mr Habib concealed the truth when he gave evidence because he wished to conceal his current sympathies and intentions.

[51]

The applicant's submissions 33 On appeal, Mr Beech-Jones SC who appeared with Mr C A Evatt and Mr W B Nicholson of Counsel for Mr Habib contended that the Tribunal's decision had been attended by a denial of procedural fairness. There was no dispute that the credibility of Mr Habib and his wife had been firmly in issue before the Tribunal. However, it was submitted, the Tribunal had erred in failing to disclose its intention to use its finding, that Mr Habib and his wife had given false evidence in the proceedings, as positive evidence (and not just as a step in the reasoning process that led the Tribunal to accept the Minister's evidence) that, at the time of the hearing, Mr Habib still held the same extremist sentiments which it was accepted he had held before 2001. The applicant submitted further that, to the extent that the potential use of the false evidence was raised in the respondents' closing submissions (as outlined below at [36]), it was not commensurate with the extent of the inference finally drawn by the Tribunal and it said nothing about the potential use of Mrs Habib's evidence. 34 Mrs Habib had given evidence to the Tribunal on two occasions. On the first occasion, she tendered a witness statement and gave oral evidence in chief disputing ASIO's minute of the telephone conversation she was said to have held with her husband on 15 September 2001. She was not cross-examined. Mrs Habib was later called to give evidence on a second occasion, during which she denied that either she or her husband had sent the emails said to have been retrieved from the family computer, and that the notebook referred to at [18(b)] above had been seized by ASIO from their house. She was then cross-examined by Counsel for the Minister, who later submitted to the Tribunal, as recorded at p 1441 of the transcript: We say Mrs Habib's claim that she did not send the two incriminating emails in question should not be accepted in light of three things. Firstly, the fact that her evidence about this only came to light on the third attempt she had at giving evidence after we say the President made it extremely clear that Mr Habib would have great difficulty winning his case if she did not give evidence about this. The President, in our submission, made it abundantly clear to the Habibs that any evidence they wish to rely upon, whether from Mrs Habib or anyone else, needed to be in a statement.

[57]

38 Using as guidelines the instructions the High Court has held should be given to a jury considering a "lie", Counsel for Mr Habib submitted that the Tribunal had been under an obligation to: (a) identify with precision the "lie" in question; (b) satisfy itself that the "lie" revealed that the applicant knew that, if he were to admit the "truth", it would reveal that he continued to be a risk of danger to Australia or a foreign country; and (c) satisfy itself that there were no other reasons for the "lie" having been told. 39 Such a cautious approach was necessary, it was said, because a lie can be told for many reasons, aside from the realisation of guilt. Lies can be "told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence": Edwards 178 CLR 193 at 211. 40 Secondly, with respect to Mrs Habib's evidence, Mr Beech-Jones submitted that the mere fact that a person's spouse is found to have given false evidence cannot be taken as positive evidence that the person continues to hold "mischievous views and dangerous intentions". That could only be so if the person and the spouse were found to have conspired to provide false evidence and that some aspect of the conspiracy involved an appreciation by both parties that the true position was that the dangerous views were still held. According to Counsel for Mr Habib, no suggestion of this kind had been raised or explored in the Tribunal proceedings. 41 Counsel invoked several authorities to support an obligation of disclosure regarding the proposed use of Mr and Mrs Habib's evidence. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, the Full Court held, at 592, that procedural fairness requires: … 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.

[58]

42 In Marelic v Comcare (1993) 47 FCR 437, Beazley J held, at 443, that the Tribunal had failed to afford procedural fairness where it had decided a matter by reference to an issue (that the applicant had feigned or exaggerated her symptoms) which had not been raised during cross-examination and had been expressly disavowed in submissions. Similarly, in Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304, the members of the Court of Appeal agreed that, where a court makes its own observations of witnesses outside of the witness-box, and those observations have a significant influence on its decision, counsel should be informed and given an opportunity to respond: at 314-315 (per Kirby P); 324 (per Clarke JA); 325 (per Hope A-JA, agreeing). Only Kirby P went so far as to say that the trial judge's failure to disclose the observations which he had made of the plaintiff in the precincts of the court resulted in a denial of natural justice (at 316-319). 43 According to Counsel for Mr Habib, these cases demonstrate that where a party is unable to deduce, from the manner in which the hearing before the Tribunal is conducted, including the cross-examination and the submissions that are made, that a particular matter is in issue, the Tribunal has an obligation to raise the matter with that party. It was submitted that, on the material available, it would not have been obvious to Mr Habib that his untruthful evidence could be taken as positively supportive of the Minister's contention that he was an ongoing security risk. Further, it was argued, the use of Mrs Habib's evidence to make a finding to that effect was even more "remarkable and extreme". 44 In Smith v New South Wales Bar Association (1992) 176 CLR 256, Brennan, Dawson, Toohey and Gaudron JJ held that the New South Wales Court of Appeal had not afforded a barrister natural justice when it denied him a specific opportunity to be heard in relation to a finding that he had lied in a disciplinary hearing before the Court in circumstances where that finding would impinge on the sanction to be imposed (at 269). According to Counsel for Mr Habib, Smith demonstrates that a specific warning may need to be given where the fact that a person lied in giving evidence is to be used against that person beyond the mere rejection of that person's evidence and the acceptance of the opposing party's evidence. 45 It was submitted further that the mere making of a submission by Counsel for the Minister about a "consciousness of guilt" was not sufficient to afford the applicant procedural fairness in relation to the use that the Tribunal subsequently made of his evidence because the Tribunal had "amplified and reshaped the submission". In particular, by its decision, the Tribunal had gone further than the respondents' submissions by identifying the "lies" which were said to exhibit a consciousness of guilt. While the respondents had only referred to Mr Habib's denials in relation to the incriminating emails, the Tribunal's decision also referred to his denials in relation to the notebook (at [9]) and the fact that Mr and Mrs Habib were untruthful "in a number of important respects" (at [90]). The respondents' submissions did not identify the particular facts that were said to demonstrate Mr Habib's "guilt", whereas the Tribunal did, and also rejected potential alternative explanations for any such "lies" (at [9]). In any event, Counsel contended, the respondents' submissions did not refer to Mrs Habib's evidence at all. 46 Mr Beech-Jones contended that Lidono Pty Ltd v Commissioner of Taxation (2002) 191 ALR 328 and the other authorities relied upon by the Minister should be distinguished for two reasons. At [5]-[6] of the applicant's written submissions in reply it was contended, first, that "Lidono … was merely an example of the Tribunal rejecting an Applicant's case; this was an example of a positive case being mounted against the Applicant which required that the facts, matters and circumstances raised against him be disclosed" and, secondly, that in Lidono "the only significance of the evidence being found to be false was that the relevant witness's contention that a fact or event happened was not accepted. … In this case the 'false' evidence was used to support the contrary proposition to what the Applicant and his wife were asserting". 47 Finally, Mr Beech-Jones submitted that, if the potential use of the Habibs' evidence had been raised with Mr Habib, it would have altered the outcome of the Tribunal hearing because there were a number of alternative explanations which may have been given in response, either by Mr Habib himself or Mr Roy Barnes, who assisted him at the hearing. For example: … there was the explanation raised by the Tribunal itself namely that they both may have wanted the Applicant to succeed in the application. Alternatively it could have been submitted that, in light of his appalling experiences in detention, the Applicant may have convinced himself that the earlier events did not happen and his wife may have determined to support him no matter what. … Be that as it is, the overall result was that the hearing was unfair.

[76]

Was there an obligation to disclose? 63 Natural justice requires that a person know the substance of the case against him or her and be given the opportunity to respond to adverse material that is credible, relevant or significant: Kioa & Ors v West & Anor (1985) 159 CLR 550 at 629 (per Brennan J). As the respondents have submitted, however, the obligation to afford natural justice is shaped not only by the statute pursuant to which the impugned decision has been made but also the particular circumstances of the case: ex parte Aala 204 CLR 82 at 109 (per Gaudron and Gummow JJ); Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 at 94, 98 (per McHugh J); Kioa 159 CLR 550 at 611-612 (per Brennan J). Thus, the content of the Tribunal's obligation must be considered in the context of s 33 of the AAT Act and with due regard to practical considerations related to the course of the hearing including, in the present case, the receipt of a large volume of evidence during a hearing over some 20 days. 64 There are sound practical reasons why a decision-maker is generally not obliged to expose his or her reasoning process or provisional views for comment by the person affected: Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs & Anor; ex parte Applicant S154/2002 (2003) 201 ALR 437 at 449 (per Gummow and Heydon JJ), 456-7 (per Kirby J); Alphaone 49 FCR 576 at 591. There may nevertheless be circumstances where fairness requires prior disclosure of such matters, as where they relate to a critical issue or factor, or where they do not follow from an obvious or natural evaluation of the evidence: see Alphaone 49 FCR 576 at 591; Somaghi v Minister for Immigration, Local Government, and Ethnic Affairs (1991) 31 FCR 100 at 108-9 (per Jenkinson J); Lidono 191 ALR 328 at 334 (per Gyles J). 65 The respondents' short answer was that, since the applicant's credibility was plainly in issue during the hearing, it would have been well understood by the parties that a witness's answers to questions "may have probative value when the court or tribunal comes to assess whether they should be accepted as a witness of truth with respect to the facts in issue" (at [11] of the respondents' written submissions). 66 There is much force in this submission. Whether there was a denial of procedural fairness in a hearing will depend upon what, as a practical matter, the real issues were and how they were addressed. 67 Essentially, the case for the Minister was that Mr Habib's conduct in the past was such as to provide the basis for a presently held suspicion about his likely conduct if an Australian passport were to be granted to him. 68 Such a case could have been met in several ways, as indeed the Tribunal pointed out at [119] (quoted at [31] of these reasons). Mr Habib could have admitted his prior conduct in whole or in part and sought to demonstrate that what he had done in the past was not indicative of what he might do many years later. He did not take that course. Theoretically, he could have argued in the alternative, challenging accounts of his past conduct but putting it that, even if his past conduct had been as alleged, nevertheless the passage of time and his conduct in the years since removed any reasonable basis for suspicion. He did not take that course either, or any variant of it. 69 Rather, the matter seems to have been contested on the footing that the past was indicative of the present with the respondents putting forward facts about the past and the applicant strenuously denying many of them. 70 There is however a particular aspect of this case that in our view suggests a need, in the interests of fairness, for the applicant to have been put on notice of specific findings the Tribunal might have made consequent upon a conclusion that Mr and Mrs Habib were not telling the truth. The specific findings to which we refer are that Mr Habib continued to hold extremist views and that he "supports Usama Bin Laden" (see [25] of these reasons). 71 In this respect the present case can be distinguished from many of the authorities to which the respondents referred. In most of those cases it had fallen to the applicant to satisfy the decision-maker of his or her fitness to hold a licence or a visa and the decision-maker disbelieved the applicant's evidence with the consequence that the application failed. The alleged error was that the decision-maker had failed to raise concerns about the credibility of the evidence or had failed to give the applicant the opportunity to adduce further evidence: see SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301 at [20]; VBAU [2003] FCA 1288 at [5]. It was held in these cases that the decision-maker had no such obligation. The alleged error here, however, is not that the Tribunal failed to disclose its concerns about the truthfulness of Mr or Mrs Habib's evidence; it was accepted that, if the Tribunal had merely disbelieved what they had said, that would provide no basis for complaint that Mr Habib should have been alerted to that possibility and its consequences. Rather, the point made here is that the Tribunal failed to disclose that it was going to use the falsity of their evidence to draw certain specific inferences that were fatal to Mr Habib's application. 72 Lidono 191 ALR 328 can be distinguished on a similar basis. The impugned inference in that case followed as a necessary consequence of the rejection of the evidence of a particular witness, whose credit was clearly in issue. 73 Accepting then that fairness required that Mr Habib be alerted to the possibility that specific findings about his present views and allegiance might be made on the foundation of a finding that he and Mrs Habib were not telling the truth about aspects of their past conduct, we come to the other issue which is whether there was in fact a sufficient disclosure.

[77]

Was the obligation to disclose fulfilled? 74 The issue for determination is whether the exchange with the Tribunal in the course of Mr Berger's submissions before it (extracted at [36] above) sufficiently raised the possibility of the impugned inferences being drawn. Counsel for Mr Habib submitted, first, that Mr Berger had referred only to Mr Habib's lies about the emails and, secondly, that Mr Berger had referred only to Mr Habib's evidence (see [45] of these reasons). 75 The first objection must fail, especially when the first passage extracted at [36] of these reasons is viewed in context. Immediately beforehand, Mr Berger had said: "In our submission Mr Habib's evidence about these emails and about the notebook, and about the telephone calls suggests that he has lied about all three, at least three of the four major planks in the respondent's case". In response to this, the President asked: "What is the significance of the fact that he lied?". Taken in context, the President was clearly referring to the lies about the emails, notebook and telephone calls. Mr Berger then proceeded to make the submissions as extracted at [36]. The fact that those submissions only referred to the emails is of no consequence. 76 The applicant's second objection is of more concern, because at no point did Counsel for the Minister invite the Tribunal to infer from the fact that Mrs Habib had given false evidence that Mr Habib still held extremist views. The respondents' answer to this submission was that the references to Mr Habib in the closing submissions before the Tribunal were sufficient because it was clear throughout the course of the hearing that the evidence of Mr and Mrs Habib was inextricably linked; in Counsel's words "they were either both lying or both telling the truth". 77 We do not see this as an answer to the point raised. Although the evidence of Mr and Mrs Habib was closely linked, the respondents did not point to any invitation to the Tribunal to draw an inference about Mr Habib's present intentions from the falsity of Mrs Habib's evidence. This, however, is not the end of the matter, because whether the obligation to afford natural justice has been discharged is not to be evaluated minutely or in a manner divorced from its context. As we have said, the obligation is a practical one. As McHugh J said in ex parte Aala 204 CLR 82 at 122, a "[b]reach of the rules of natural justice…does not automatically invalidate a decision adverse to the party affected by the breach": see also Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; ex parte Aala 204 CLR 82at 88-89 (per Gleeson CJ); 116 (per Gummow and Gaudron JJ); 130-131 (per Kirby J); 154 (per Callinan J). McHugh J went on to say (at 122) that a court can refuse relief "when it is confident that the breach could not have affected the outcome". 78 We have already found that the impugned inferences, so far as they were drawn from Mr Habib's false evidence, were sufficiently raised for consideration by the respondents' closing submissions which, as we have noted, preceded those of Mr Habib. We have also drawn attention to the broader context of the matter having been contested on the footing that the past was indicative of the present (see above at [69]). We are confident that it would have made no difference to the outcome if Mr Berger had invited the Tribunal to draw the impugned inference from Mrs Habib's evidence as well as Mr Habib's. 79 For these reasons, each application should be dismissed. 80 Finally, we should note that although the applicant's notice of appeal contained grounds challenging the Tribunal's very qualified use of information obtained from him whilst he was detained at Guantanamo Bay, those grounds were abandoned. Accordingly no submissions were made before us about the use of such material, derived at a time when the applicant, in a high security facility, was interviewed whilst manacled, shackled and attached by a chain to the floor. There is therefore no occasion for this Court to address the issues, with which the Tribunal was confronted, that arise when it is sought to use material of such a character in administrative proceedings. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and the Honourable Justices Ryan and Lander.