FEDERAL COURT OF AUSTRALIA Applicant S214 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1039 MIGRATION – protection visa –operation of Art 1F of the Refugees Convention –– request for particulars – effect of Administrative Appeals Tribunal Act 1975 (Cth), s 35 – non-disclosure of evidence to applicant or his legal representatives – whether denial of procedural fairness Judiciary Act 1903 (Cth) ss 39B, 44 Migration Act 1958 (Cth) ss 29, 31, 36, 474, 483, 500 Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 39, 44 Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82 cited APPLICANT S214 OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ANOR N287 OF 2003 EMMETT J 30 SEPTEMBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N287 OF 2003 BETWEEN: APPLICANT S214 OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT ADMINISTRATIVE APPEALS TRIBUNAL SECOND RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 30 SEPTEMBER 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the application be dismissed; 2. the applicant pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N287 OF 2003 BETWEEN: APPLICANT S214 OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT ADMINISTRATIVE APPEALS TRIBUNAL SECOND RESPONDENT JUDGE: EMMETT J DATE: 30 SEPTEMBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant seeks relief pursuant to s 39B of the Judiciary Act 1903 (Cth) ('the Judiciary Act') in respect of a decision ('the s 500 Decision') made under s 500(1)(c) of the Migration Act 1958 (Cth)('the Migration Act') by the second respondent, the Administrative Appeals Tribunal ('the AAT'), on 12 October 2001. By the s 500 Decision, the AAT affirmed a decision of a delegate of the first respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister'), made on 9 August 2000, to refuse to grant to the applicant a protection visa under Pt 2 of the Migration Act. The ground for refusing a protection visa was that there are serious reasons for considering that the applicant has committed a crime against humanity. 2 On 30 August 2002, the applicant sought orders in the nature of prohibition, certiorari and mandamus in the High Court of Australia. On 6 February 2003, after granting the applicant leave to amend his draft order nisi, but before dealing with the application for an order nisi, Gaudron J ordered that the further proceedings in the application be remitted to the Federal Court of Australia. The proceeding came before me for directions on 21 May 2003. Since the applicant is in detention and that detention appeared to be having a significant effect on the applicant's mental health, I directed that the proceeding be heard on a final basis as soon as possible. In order to regularise the proceeding, the applicant filed an application on 16 June 2003. To make clear the basis upon which the applicant claimed relief, I directed him to file a statement of claim, which was subsequently filed on 19 June 2003. 3 The hearing commenced on 12 June 2003 with an estimate of no more than one day. However, the proceeding was adjourned part heard to 16 June 2003 and then to 19 June 2003. On 19 June 2003, the applicant applied for, and was granted, leave to reopen his case to rely on further evidence consisting of an affidavit sworn by him. The hearing continued on 20 June 2003 when the affidavit was read. 4 The applicant's case is based on the proposition that, in a number of respects, he was denied procedural fairness in the proceeding before the AAT. The procedural unfairness was said to arise out of the way that the AAT dealt with the application before it in the light of orders made by it that certain material relied on by the Minister was not to be disclosed to the applicant or his legal advisers. Initially, the Minister did not tender that material in the proceeding in this Court. 5 However, the Minister contended that, if I was not prepared to dismiss the proceeding on the basis of the material in evidence, I should have regard to material before the AAT that was not made available to the applicant or his advisers. That material included oral evidence given before the AAT, which had been recorded but not transcribed. A transcription of that evidence did not become available until 29 July 2003. After the transcription became available, there were further hearings on 8, 13 and 22 August 2003 and 10 September 2003 in relation to that material, partly in camera. 6 As I have said, the proceeding, as remitted by the High Court, had not reached the stage of making an order nisi. However, when the proceeding was fixed for hearing, it was on the understanding that the applicant would be seeking final relief. STATUTORY FRAMEWORK 7 Section 29(1)(b) of the Migration Act relevantly provides that the Minister may grant a non citizen permission, to be known as a visa, to remain in Australia. Section 31(2) provides that, as well as prescribed classes of visas, there are classes of visas provided for by the succeeding sections of the Migration Act, including s 36. Section 36(1) provides that there is a class of visas to be known as protection visas. Under s 36(2)(a), a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (as those terms are defined in the Migration A\ct). 8 The Refugees Convention imposes protection obligations on Contracting States in favour of certain persons who fall within the definition of 'refugee' in Art 1. However, Art 1F of the Refugees Convention provides that the provisions of the Refugees Convention do not apply: '… to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.' 9 Section 500(1)(c) of the Migration Act provides that applications may be made to the AAT for review of a decision to refuse to grant a protection visa relying on Art 1F of the Refugees Convention. Under s 500(5) of the Migration Act, for the purposes of reviewing a decision referred to in s 500(1), the AAT must be constituted by a presidential member alone. 10 Under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'), there is ordinarily a right of appeal to the Federal Court of Australia on a question of law from a decision of the AAT. However, s 483 of the Migration Act provides that s 44 of the AAT Act does not apply to a 'privative clause decision' as defined in s 474(2) of the Migration Act. A decision made pursuant to a review under s 500(1)(c) would be a privative clause decision if it could properly be described as a decision made under the Migration Act. However, the applicant asserts that the s 500 Decision was not a privative clause decision because there was such a denial of procedural fairness that it was not a decision made under the Migration Act. 11 Nevertheless, the applicant's claim for relief is made under s 39B and s 44 of the Judiciary Act. Section 39B(1) of the Judiciary Act provides that the original jurisdiction of the Federal Court includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The applicant claims orders that the s 500 Decision be quashed and that the matter be remitted to the AAT for further consideration according to law. Section 44(1) of the Judiciary Act provides that a matter that is at any time pending in the High Court, including a matter in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth, may be remitted by the High Court to the Federal Court. BACKGROUND TO THE S 500 DECISION 12 The applicant is a male Afghan, who was born in Kunduz, Afghanistan, in 1958. He is of Tajik ethnicity and is a Sunni Muslim. Between 1965 and 1977, he attended high school in Kunduz and thereafter studied philosophy and social science at the University of Kabul. While there, he was the secretary of the philosophy faculty branch of the People's Democratic Party of Afghanistan ('the PDPA'). 13 As an active member of the PDPA, the applicant was nominated to study in Moscow, where he attended the Patrice Lamumba University between 1980 and 1986. Whilst in Moscow, the applicant continued to be an active member of the PDPA and was secretary of the Afghan students branch at the University. He was also a member of the Moscow City branch of the PDPA. In 1986, he was admitted to the degree of Master of Laws. 14 After his return to Afghanistan in 1986, the applicant lived in Kabul with his maternal aunt, his parents having died whilst he was in Moscow. He continued his involvement with the PDPA. He claimed that his role was as an educator in the organisational section of the central committee of the PDPA in Kabul. His duties were to advise others in the organisational section how to set up, develop and maintain party groups. 15 After about four or five months in that job, the applicant returned to Kunduz, where he was then in charge of the propaganda, propagation and circulation subcommittee of the provincial party committee of Kunduz. After a few months in that role, he started military service. The applicant said that, during the time when he was performing his military service, he was a soldier of lowest rank in a military unit of the Khadimat-e Atal'at-e Dowlati ('KHAD') stationed on the outskirts of Kunduz. 16 It was not seriously contested in the proceeding before the AAT that KHAD was a powerful and repressive organisation given to brutal interrogation procedures as a means of maintaining the control of President Najibullah over the Afghan people. KHAD personnel were involved in the wide scale torture, murder and imprisonment without trial of countless Afghan citizens who were suspected of opposition to the Najibullah regime. 17 However, the applicant claimed that the function of the unit in which he served was to ensure the security of Kunduz and to see that the people living in that area were not being harassed or harmed by the Mujahidin. He said he had a secondary duty as a political deputy for the PDPA. He said that he was not involved in any fighting or intelligence work for KHAD. 18 The applicant says that, after performing his military service, he commenced work with the Ministry of Foreign Affairs in Kabul. He was in charge of the political desk of the third political department. 19 In 1992, President Najibullah was overthrown and was succeeded by President Mojaddedi, who was in turn quickly succeeded by Professor Rabbani. Professor Rabbani continued in the office of President until the Taliban took over control of Afghanistan in 1996. 20 Between 1992 and 1996, the applicant continued in his role with the Ministry of Foreign Affairs and accompanied President Rabbani on international visits. Shortly before the Taliban took over in Kabul, the applicant obtained a visa to Pakistan. Soon thereafter, his home was shelled and partially destroyed. He and his family left Kabul on the following day and fled to Pakistan. From there, he crossed the border into Iran and, having sought the assistance of President Rabbani, he was given a job at the political desk at the Afghanistan embassy in Iran. 21 In 1997, the Minister for Foreign Affairs in the Rabbani administration visited Iran and, as a consequence, the applicant was posted to the Afghan embassy in Damascus, Syria, as the second secretary. He commenced his appointment in Damascus in August 1997. 22 The applicant said that, whilst working in the embassy in Damascus, he planned a holiday in Australia and applied for a tourist visa. Visas were granted to him and his family without any difficulty. In September 1999, he was advised that his appointment at the Afghan embassy was terminated. Believing that he could not return to Afghanistan because of likely retribution from the Taliban, he decided to come to Australia to seek asylum. 23 The applicant arrived in Australia with his family on 30 September 1999 and lodged an application for a protection visa on 6 October 1999. The applicant's wife submitted a separate application and she and their two dependent children were granted protection visas. However, the applicant was detained in the Villawood Detention Centre. 24 The applicant's claims were originally set out in a statutory declaration made on 20 October 1999. Investigations of the applicant's claims were carried out by the delegate of the Minister who was dealing with his application for a protection visa. The applicant was interviewed by the delegate on 28 October 1999. On 11 February 2000, the delegate interviewed members of the Afghan community in Sydney and subsequently prepared a document ('the Meeting Summary') entitled: 'SUMMARY OF MEETING HELD WITH MEMBERS OF THE AFGHAN COMMUNITY AT PARRAMATTA OFFICE ON FRIDAY 11 FEBRUARY 2000'. The applicant was interviewed by the Minister's delegate again, on 25 February 2000. 25 A detailed assessment of the applicant's claims was then made and, on 9 August 2000, the Minister's delegate concluded that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention. The delegate's conclusion was that the Refugees Convention did not apply to the applicant by reason of the operation of Art 1F and that, therefore, the applicant is not a person to whom Australia has protection obligations within the meaning of s 36 of the Migration Act. 26 The delegate's summary of the allegations against the applicant are taken almost verbatim from the Meeting Summary. However, the delegate referred to persons who had made allegations against the applicant as 'Person X' and 'Person Y'. The relevant parts of the delegate's reasons are set out in Appendix A to these reasons. 27 The applicant then sought review of the delegate's decision by the AAT under s 500(1)(c) of the Migration Act. In the proceeding before the AAT, the Minister maintained the position that the Refugees Convention did not apply to the applicant by reason of the operation of Art 1F. APPLICANT'S REQUESTS FOR PARTICULARS 28 A redacted version of the Meeting Summary was furnished to the applicant's solicitors on 21 November 2000. However, at that time, the Minister's solicitors also informed the AAT that neither Person X nor Person Y was willing to testify in the proceeding before the AAT and that they would therefore not be called by the Minister to give evidence. The Minister's solicitors informed the AAT that the Minister was urgently endeavouring to obtain relevant evidence from overseas and that that evidence should be available by mid to late February 2001. The applicant's solicitor responded by pointing to the possibility that the applicant would be confronted with new evidence at, or close to, the hearing, without having an opportunity to prepare cross-examination. 29 At a directions hearing conducted by a conference registrar of the AAT on 6 December 2000, the Minister advised that a further decision had been made that the evidence to be provided to the AAT would be witness evidence from persons in Australia and that the Minister would not be pursuing further information from overseas as foreshadowed in the letter of 21 November 2000. The Minister was unable to provide any definite timetable as to when affidavits and other material to be relied upon would be filed or served. 30 On 27 February 2001, Mr C R Wright QC, a presidential member of the AAT ('the Deputy President'), conducted a directions hearing. In the course of that hearing, the Minister sought orders under s 35 of the AAT Act. Section 35 relevantly provides as follows: '(1) Subject to this section, the hearing of a proceeding before the Tribunal shall be in public. … (2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order: (a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and (aa) give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and (b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and (c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding. (3) In considering: (a) whether the hearing of a proceeding should be held in private; or (b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted; the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.' 31 In support of his request for orders under s 35, the Minister relied on an affidavit of Ms Nasida Akram sworn on 21 December 2000. Ms Akram has been an Australian citizen since 1981. She arrived in Australia as a visitor in August 1978 and was subsequently granted refugee status by Australia. In her affidavit, Ms Akram gave background evidence concerning Afghanistan. 32 Ms Akram also referred to a draft affidavit. She said that the proposed deponent had not yet been able to swear the affidavit but that he would swear it in that form, apart from minor changes. She also referred to a sworn affidavit by another deponent. Niether deponent was identified in Mrs Akram's affidavit. However, Ms Akram said that both deponents would give evidence as to their personal knowledge of the applicant and that that their evidence was such that the applicant would have the means of establishing their identities. She said that, on the basis of the documents attached to her affidavit, it would be very dangerous for the two deponents to be identified. 33 Ms Akram also referred to the Meeting Summary and in particular to two of the people present at the interviews recorded in the Meeting Summary, to whose statements the Minister's delegate gave weight. Ms Akram said that based on the documents attached to her affidavit, it would be very dangerous for those persons, who were referred to by the Minister's delegate as Person 'X' and Person 'Y', to be identified. 34 Ms Akram also said that Person 'X' and Person 'Y' had said to her that they would refuse to give evidence to the AAT because of their fear of reprisals by the applicant 'and his group'. She also said that if the applicant were to find out the evidence, or the identities, of the persons mentioned in the two confidential affidavits, or the persons mentioned in the Meeting Summary, their lives and the lives of their loved ones would be in danger. 35 In the course of the hearing on 27 February 2001, the solicitor for the Minister proffered a sworn affidavit along the lines of the draft affidavit that had been referred to in Ms Akram's affidavit. That was received by the Deputy President and marked as a confidential exhibit, as were the affidavit and draft affidavit referred to in Ms Akram's affidavit and a complete copy of the Meeting Summary. It is apparent from Ms Akram's affidavit that the two witnesses whose affidavits were tendered in the course of the directions hearing on 27 February 2001 are different from the persons referred to in the Meeting Summary, who are referred to in the reasons of the delegate as Person 'X' and Person 'Y'. 36 On 11 April 2001, the Deputy President made an order under s 35 of the AAT Act ('the s 35 Order') that certain documents ('the Confidential Documents') be placed and kept in sealed envelopes in the Sydney registry of the AAT, that the contents of such envelopes be made available for the use of the member of the AAT hearing the applicant's application for review, that such material be received in evidence by the AAT and that the publication or disclosure of the evidence or material contained in the Confidential Documents, except to the Minister, his legal representatives and the member of the AAT conducting the hearing, be prohibited. Thus, the applicant and his legal advisers were not to be given access to the evidence and material contained in the Confidential Documents. The Confidential Documents consist of: · the affidavit and draft affidavit referred to by Ms Akram in her affidavit, · the affidavit tendered by the Minister's solicitor on 27 February 2001, and · a complete copy of the Meeting Summary. 37 The reason given by the Deputy President for making the s 35 Order was that there is a distinct risk of inflicting serious disadvantages upon the deponents of the affidavits and that, in order to preserve the proper confidentiality of the important and cogent evidence of those deponents, that evidence should be received in confidence by the AAT. The Deputy President was satisfied that it was desirable to make the orders by reason of the confidential nature of the evidence and the potential apprehended risk to the safety of the deponents of the affidavits and of two persons named in the delegate's reasons as Person 'X' and Person 'Y'. 38 In the course of his reasons for making the s 35 Order, the Deputy President observed that it may well be desirable, before the hearing, to direct the Minister to provide appropriate particulars of the war crimes relied upon as activities justifying the denial to the applicant of a protection visa. Accordingly, on 26 April 2001, the solicitor for the applicant wrote to the Minister's solicitors requesting particulars of the matters upon which the Minister intended to rely in maintaining that the applicant should be excluded from the protection of the Refugees Convention under Art 1F. 39 The request sought particulars as follows: '1. Which provisions of Article 1F of the Refugees convention are relied upon: 1F(a), 1F(b) and/or 1F(c)? 2. In relation to Article 1F(a), what are the precise crimes that it is alleged that the applicant has committed? (Please provide references to provisions of relevant international instruments, as required under that provision) 3. In respect of each of the crimes alleged, please provide precise details as to the following: (a) When is it alleged that the crime was committed? (As precisely as possible) (b) Where is it alleged that the crime was committed? (Please provide the town as well as the precise location.) (c) How is it alleged that the crime was committed? (eg What are the precise actions of the applicant alleged to constitute the crime?) … .' On 17 May 2001, following further correspondence, the Deputy President directed that, subject to the s 35 Order, the Minister provide those particulars by close of business on 25 May 2001. The qualification is of significance. 40 On 25 May 2001, the Minister's solicitors purportedly furnished particulars, relevantly in the following terms: 'STATEMENT OF PARTICULARS RELATING TO ARTICLE 1F The Respondent contends that, pursuant to Article 1F of the 1951 Convention Relating to the Status of Refugees ("the Refugees Convention"), there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; Particulars (i) Crimes against peace: namely, planning, preparation, initiation or aging of a war of aggression, or a war in violation of international treaties agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; The Applicant, between 1980 and 1986, actively participated in the planning, preparation and initiation of a war of aggression against the people of Afghanistan as part of the invasion and occupation of Afghanistan by the Soviet Union. After 1986, the Applicant actively participated in the implementation of that common plan, waging a war of aggression against the people of Afghanistan. (ii) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose, of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; Subject to the confidentiality orders made by the Tribunal on 11 April 2001, it is alleged that the Applicant, after his return from Moscow in 1986, committed acts of torture, inhumane and ill-treatment, including against the civilian population of Afghanistan. These acts included detention without trial and extra-judicial punishment. (iii) Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Subject to the confidentiality orders made by the Tribunal on 11 April 2001, it is alleged that the Applicant engaged in acts and atrocities amounting to the systematic persecution of the people of Afghanistan for political, racial and religious reasons.' 41 On 26 July 2001, in the course of the hearing, the Deputy President also directed the Minister to recast the particulars so that: 'they refer to the conduct complained of and what part of the Convention it offends and, insofar as it necessary to do so, provide foot-notes or elaboration of the meaning of those terms in the [C]onvention.' The Minister subsequently furnished further particulars, relevantly as follows: 'Article 1F of the Convention relating to the Status of Refugees provides for exclusion in the following circumstances: [Article 1F was then reproduced.] The evidence required to satisfy the Tribunal that there are "serious reasons for considering" that the Applicant falls within Article 1F(a), 1F(b) or 1F(c) may be characterised as "strong" without being of such weight as to persuade the decision-maker beyond reasonable doubt or even on the balance of probabilities. Arquita v Minister for Immigration and Multicultural Affairs [2000] FCA 1889 Further, Article 147 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War is in the following terms: Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serous injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. Crimes against humanity Te Respondent contends that this phrase should be interpreted broadly. Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 596 and 669. A recent formulation of this offence is to be found at Article 5, Statute of the International Tribunal. The Tribunal has recently applied this phrase broadly to circumstances arising in … Lebanon and Sri Lanka (N96/1441 and Minister for Immigration and Multicultural Affairs [1998] AATA 619 and "SRNN" and Department of Immigration and Multicultural Affairs [2000] AATA 983.' 42 On 15 August 2001, the applicant's solicitor responded to those particulars relevantly in the following terms: 'War Crimes 5. The Applicant concedes that, if the Tribunal finds that there are serious reasons for considering that, as a soldier (or officer – if that is proven), he committed acts of torture against either prisoners of war or civilians during the conflict by the Afghan government against the Mujahadin forces, this would constitute a war crime within the relevant international instruments identified by the Respondent or, alternatively, as a [sic] Article 3 of the Geneva Convention Relative to the protection of Civilian Persons in Time of War. 6. The Applicant is not able to concede that the acts alleged by the Respondent were in fact war crimes because the Applicant is unaware of the circumstances in which the allegations of torture are said to have taken place. Crimes Against Humanity 7. It is submitted that, to make good the allegation that the Applicant has committed Crimes Against Humanity, the Respondent must demonstrate a systematic pattern of persecution aimed at members of an identifiable group within the civilian population (Polyukhovich v The Commonwealth (1991) 172 CLR 501; as discussed and adopted in N96/1441 at paragraphs 61-65). 8. The Applicant does not know the details of the allegations against him. As such he cannot admit this matter, but, if the Tribunal finds that there are reasonable grounds for believing that the Applicant tortured civilians on the basis that they were believed to be associated to [sic] the Mojahadin [sic], then such actions would constitute a crime against humanity.' 43 On 16 August 2001, in the course of a further hearing before the AAT, the Deputy President engaged in dialogue with the solicitor for the Minister concerning the particulars that had been supplied. Specifically, the Deputy President said: 'Yes, well its something that has troubled me throughout these proceedings, I must say. To be perfectly frank, I thought that when these particulars were supplied, some more factual material would have been stated by [the Minister's solicitor] in his particulars, based upon that evidence in a way which would not of course have breached the confidentiality aspect of it, which has only been adopted for safeguarding the witnesses' identity essentially. But it seemed to me that some of the factual components of the evidence could and should have been made known at some appropriate stage.' 44 Subsequently, the following observation was made by the Deputy President: 'I'm surprised that at some stage there hasn't been a particularisation of the factual allegations made against [the applicant] as to the criminal activities that would be supported by that particular evidence. Just let me give you a simple demonstration of that. I don't see how you are precluded from saying for example and the allegation is that on 25 May, 2001, Joe Bloggs murdered Sam Smith. Now that is a bald statement of fact but it particularises the alleged crime for your opponent so he knows what he has to direct his attention to in terms of providing an alibi or what other evidence he might be able to adduce to meet it. That particularisation doesn't disclose that your only witness of that alleged criminal enterprise was Bill Sykes who happened to be looking out of his window and saw it at the particular time … . I don't see that the mere confidential nature of the evidence to support the allegation precludes you or indeed excuses you from not particularising the matter of [complaint] that you are really intending to rely on.' 45 After a further brief exchange, the applicant and his legal adviser left the hearing room at the request of the Deputy President. The applicant and his solicitor were outside the hearing room for approximately 25 minutes. During that time, the solicitor for the Minister engaged in further dialogue with the Deputy President. 46 Towards the end of that time, there was an exchange between the Minister's solicitor and the Deputy President. Relevant parts of the exchange were as follows: Minister's solicitor: 'Yes, that was the extent to which I considered it safe to put that matter and it's from this point of view, … the applicant's reply and his evidence-in-chief for that matter had made a broad statement that he had no knowledge of [Sederat] whatsoever as an interrogation or a torture [place].' Deputy President: 'Well, that might be the simple answer to it. I suppose that in respect of all these matters it's not something that he could explain away[;] it's a matter which is totally inconsistent with his evidence as to his innocent association with [KHAD] and the army and so on.' Minister's solicitor: 'Yes, and the second of the matters that was put to him in cross examination related to his time in [Kunduz] when it was put to him that he had interrogated people … in [Kunduz] on several occasions and again his answer was …"I sat at that village post in Baghaberry for all of that time"… to the extent that those particulars are able to be particularised, that was the extent to which I felt it was necessary to put those particulars. Now if the applicant had given a different answer in chief relating to his knowledge of [Sederat] that he was actually at [Sederat] and that he was aware of certain things going on, it might have been necessary [to descend into greater particularity].' Deputy President: 'Yes, I understand that argument.' Minister's solicitor: 'So to the extent that I am being asked to particularise now, it is to the extent that the questions were put in cross examination … . I'm happy to remind my friend … and to make it clear to him that that's the particularisation that the [Minister] seeks to put in this case. They relate quite directly to the events that these witnesses [gave] evidence about.' Deputy President: '… I'm not going to take the matter further in light of the discussion we've had. … I can see what your point is to help you have the discussion. [The applicant's solicitor] doesn't seem to be making any of the issues that I have suggested might be issues.' Minister's solicitor: 'I accept what you say that I have to highlight those questions that I put to him as the particulars on which I now rely, that's fair that I should do that.' Deputy President: 'Yes, I entirely agree with that. Well, I'll leave it to you as to how you put it in your final address. …' Minister's solicitor: '… Just for the purposes of the transcript, … could I seek a 35(2) type order.' Deputy President: 'Yes, well I'll give a direction in respect of the in camera discussion I've just had with [the Minister's solicitor] that that discussion is not to be transcribed … at any time except by order of me or some other member of the tribunal or by a court of competent jurisdiction.' 47 When the applicant and his solicitor returned, the Deputy President said: '[the] discussion I have had in your absence with [the Minister's solicitor] has clarified my mind to some extent. I don't see any need to pursue the question I raised with him any further at this point. Was there anything more you wanted to raise at this stage?' The applicant's solicitor replied that there was not and that it was going to be 'a question of the weight that can attach to the evidence'. 48 In his reasons, the Deputy President, relevantly for present purposes, dealt with particulars in the following terms: '[30] Violations of the laws or customs of war may amount to "war crimes". Such violations may include murder, ill treatment or deportation to slave labour or for any other purpose of members of the civilian population of or in an occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages or devastation not justified by military necessity. The respondent alleges that after his return from Moscow to Afghanistan in 1986, the applicant committed acts of torture, inhumane treatment, and ill treatment of the civilian population of Afghanistan, including detention without trial and extra judicial punishment. [31] Crimes against humanity may be committed by an offender committing murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during a war or by persecutions on political, racial or religious grounds, and execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where the offences were perpetrated. The respondent alleges that the applicant engaged in acts and atrocities amounting to the systematic persecution of the people of Afghanistan for political, racial and religious reasons. … [34] The particular acts or activities of the applicant which were alleged to constitute the disentitling conduct described above, were not further particularised because it was contended to do so would be to act in breach of the confidentiality order which I made on 11 April 2001.' (Emphasis added). That last observation appears to be a reference to the contention advanced at the hearing on 16 August 2001. THE AAT'S FINDINGS AND REASONS 49 In his reasons of 12 October 2001 for making the s 500 Decision, the Deputy President made findings as follows: '[71] On the whole of the evidence, including the documentary evidence, I find that the applicant was an influential member of KHAD and was directly involved in the interrogation, ill-treatment and torture of political opponents and suspected political opponents whilst serving in a KHAD unit in the Afghanistan army at Kunduz. These activities were carried out on a more or less regular basis over a period of several months in 1986. As the account given suggests that these activities were mainly carried out at night, whilst the applicant was wearing an officer's uniform. The witnesses called by the applicant claimed to have seen him wearing only the uniform of a private soldier. It is entirely feasible in my opinion that his role as an interrogator was assumed in the evening after masquerading as a private soldier during the day. I imagine KHAD operatives would be no more anxious to expose their clandestine activities to the outside world, than members of other secret police and intelligence gathering organisations involved in similar work. [72] I also find that subsequent to his work in Kunduz, the applicant carried out similar interrogation procedures at the Sederat in Kabul involving ill-treatment and torture of suspects. These acts were carried out in 1989 and probably also in 1990.' No more specific findings of primary fact were made as to disentitling conduct on the part of the applicant 50 The Deputy President observed that the applicant had correctly conceded that: * if the AAT should find that there are serious reasons for considering that the applicant committed acts of torture against either prisoners of war or civilians during the conflict by the Afghan government against the Mujahidin forces, this would constitute a war crime; * if the AAT were to find that there are reasonable grounds for believing that the applicant tortured civilians on the basis that they were believed to be associated with the Mujahidin, then such actions would constitute a crime against humanity. 51 Having made the findings in par 71 and par 72, the Deputy President did not consider it necessary, in the light of those concessions, to give consideration to the question of whether the applicant's activities constituted serious non-political crimes or acts contrary to the purposes and principles of the United Nations. The Deputy President ultimately concluded, therefore, that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention because of the operation of Art 1F. 52 In his reasons, the Deputy President said that, in the course of the hearing, he heard oral sworn evidence 'broadly similar' to that recounted in the Meeting Summary, but from witnesses other than those whose recollections were recorded in the Meeting Summary. The two witnesses were referred to as Witness 'A' and Witness 'B'. The evidence was taken in the absence of the applicant and his solicitor. A further order under s 35 of the AAT Act was made in respect of that evidence that it not be disclosed to any one other than the Minister, his legal representatives and the AAT. 53 The Deputy President regarded the maintenance of the safety of Witness 'A' and Witness 'B' as being of paramount importance. He found it difficult to discuss the evidence that they gave in camera in any helpful detail without running the risk of betraying their identities. He was conscious that neither Witness 'A' nor Witness 'B' had been cross-examined on behalf of the applicant and that that imposed serious limitations upon the evaluation process. He also observed that: '[t]his is a problem, which I foresaw when preparing my earlier reasons and has been at the forefront of my mind in making my findings in the present proceedings.' 54 The Deputy President said that identification material provided by the witnesses was described in his reasons as fully as was possible 'in the circumstances'. The Deputy President regarded the evidence of Witness 'A' and Witness 'B' as being 'mutually consistent and also consistent with the evidence, including the photographic evidence, portraying the appearance of the applicant at various times in his life'. He said that he was not satisfied beyond reasonable doubt that the applicant had been conclusively identified as the perpetrator of criminal offences described by Witness 'A', and to be inferred from the evidence of Witness 'B'. However, he was strongly persuaded, on the balance of probability, and was satisfied, bearing in mind the gravity of the allegations made, that the applicant was the person whose violent offences were described by Witness 'A' and Witness 'B'. He also said that he had no reason to doubt the credibility of either witness, based upon the content of what they said or the manner in which they gave evidence. 55 Evidence of identification of the applicant depended to some extent on his name. The applicant said that he had not always been known by the surname now used by him and that he had adopted that surname while he was serving as a diplomat in Syria. He said that prior to that he was known by his first two names. He said that, to be a diplomat, it was necessary to have a surname so that he could be issued with a passport showing a surname. 56 The Deputy President referred to the evidence of three witnesses who gave sworn evidence that supported the applicant. One was Mohammad Ali Dardmal, who was a qualified and experienced doctor, who worked in Afghanistan from 1970 until leaving the country to come to Australia in 1992. Dr Dardmal said that he had known the applicant since 1978 when Dr Dardmal was his family physician. Dr Dardmal said that the first time he heard the applicant referred to by the surname presently used by him was when he spoke to him in the Villawood Detention Centre in Sydney in early 2000 on an occasion when he was visiting another person. 57 In a statutory declaration provided to the AAT, Dr Dardmal said that he only ever came to know of one man in KHAD by the name now used by the applicant as his surname. He said in the statutory declaration that that man was a teacher before he joined KHAD and was a dangerous person. Dr Dardmal was asked to give some detail as to that person. He described the person as "a tall man with dark skin, who rode a red motorbike'. 58 Witness 'B' gave evidence first and said that, in Kabul in 1989, he met a person who was subsequently identified to him as a person bearing the full name, including surname, now used by the applicant. Witness 'B' said that the person was in his presence for about four minutes. He said he was wearing ordinary western style clothing, was clean shaven and did not wear spectacles or have any observable scar or birthmark. He said his hair was of average length and was light brown, 'like date fruit colour, a light date colour'. 59 Witness 'B' said that, before the person spoke, he thought he was non-Afghan because of his face. However, once he spoke, witness 'B' realised that he was Afghan. Witness 'B' said that the person was distinctive because he had greenish blue eyes, fair hair and fair skin and spoke very calmly with a smile. He had clear skin in comparison to an Afghan person, in the sense that it was lighter and had a reddish touch to it. Witness 'B' said that the appearance was comparable to the Tajik people and the person spoke in Persian, but with a Tajik accent. Witness B said that the person appeared to be 27 or 28 years of age, of medium build and about 163 centimetres in height. 60 The Deputy President considered that the evidence of Witness 'A' was of particular importance. Witness 'A' claimed to have had a substantial association with the applicant and to have observed first hand many acts of torture and violence perpetrated by the applicant. Witness 'A' gave evidence by telephone from an overseas location and the AAT therefore had no opportunity to observe his demeanour. 61 The Deputy President considered that it was 'particularly regrettable' that Witness 'A' could not attend the hearing in person or be present at some form of identification parade. He also observed that Witness 'A' pointed out that the circumstances that he had described in his evidence occurred 'a long time ago'. However, the Deputy President found that Witness 'A' answered questions readily, without apparent dissimulation or circumlocution. 62 Several photocopies of a photograph of the applicant contained in an army discharge document were provided to Witness 'A'. The Deputy President did not consider it to be appropriate to provide Witness 'A' with a more recent group photograph that was in evidence. Witness 'A' said that he was 80 per cent sure that the photograph shown to him was of the person he knew by the surname now used by the applicant, although he was slimmer than shown in the photograph. 63 Witness 'A' said that the person he knew by the full name now used by the applicant had rather light yellowish hair and that it was light brown 'like a date'. The comparison was apparently suggested by the interpreter. Witness 'A' said the hair of the person he knew was not very curly, although it was slightly wavy, that his eyes were green and that he was of medium height. He said that the person was clean shaven and had neither a moustache nor a beard. He wore the uniform of a Toran, which was different from an ordinary soldier's uniform. Witness 'A' also said that he knew of no other person with the surname now used by the applicant, in the place where he was at the relevant time and that he knew of no-one of that name who rode a red motorbike. 64 In his reasons, the Deputy President said: '[65] During the course of the hearing, I looked closely at the applicant's eyes. They were blue/green in colour. Apparently eyes of this colour are very [rare] in Afghanistan. The applicant now has wavy hair, much longer than the hair shown in [the photograph in the applicant's army discharge document]. He is also some 12 or 13 years older than at the time that document was issued. Whilst we were not told when the photograph itself was taken, the applicant is in military uniform of some kind, and I would infer that it was taken between 1987 and 1989. … [67] Towards the end of the hearing I asked that the applicant be recalled to the witness stand. I wanted to ask him some further questions in light of the evidence, which had been given regarding the colour of his hair. He told me that his hair had been kept very short during his military service, and he had been clean shaven during that period of time. He said when cut short his hair took on a lighter hue than it presently exhibits. His hair is now very dark, but it has a penumbra of brown about it. He said "even now if I shave my hair or have it very short it would be lighter".' 65 The Deputy President also referred to an assertion recorded in the Meeting Summary about an interrogator at the Kunduz Detention Centre run by KHAD 'looking like a Russian'. The Deputy President accepted that he could not know the facial characteristics that such a description was meant to convey but considered that it would be difficult to conclude that it was consistent with certain photographs of the applicant that were in evidence. He considered that anyone would be very hard pressed to recognise the applicant today from the photo contained in the army discharge document that was in evidence. He observed in that regard: 'As already mentioned he is shown with short hair, clean shaven and a somewhat fatter face than he has at present. I personally would have no difficulty with his description as "Russian looking" in that photo. These considerations whilst of themselves of no great weight tend to support the conclusion that the applicant was the torturer known to Witness "A".' THE APPLICANT'S CLAIMS TO RELIEF 66 In his application filed on 16 June 2003, the applicant claims: * an order in the nature of certiorari quashing the s 500 Decision; * an order in the nature of prohibition prohibiting the Minister from acting upon the s 500 Decision; * an order in the nature of mandamus compelling the AAT to reconsider the s 500 Decision with a differently constituted tribunal according to law. 67 By his statement of claim, the applicant alleges that the AAT was required to accord him procedural fairness during the hearing, including: * an opportunity to know and understand the evidence led against him; * an opportunity to challenge or lead evidence in reply to evidence led against him; * an opportunity to make submissions to the AAT as to whether the evidence led against him should be accepted or rejected or what weight, if any, should be accorded to it. 68 Clearly, it is undesirable for any person whose rights might be affected by a decision, to be deprived of the opportunity of considering and challenging the evidence upon which that decision is based. Nevertheless, s 35 of the AAT Act clearly contemplates that such a circumstance might be permitted. There has been no challenge to the validity of s 35. While there was initially a challenge to the decision to make the s 35 Order, that challenge was not pursued as such. Rather, the applicant contended that a denial of procedural fairness occurred by reason of the way in which the proceeding before the AAT was conducted following the making of the s 35 Order. 69 The applicant alleges that the AAT failed to accord him procedural fairness on four grounds as follows: (1) The applicant was denied the opportunity properly to know and understand the case against him and to meet that case because of the failure of the Minister to provide any particulars of the facts said to constitute conduct under Art 1F of the Refugees Convention. The applicant says that, in the absence of those particulars, he was disadvantaged in the conduct of his case in that: · he was unable to ascertain whether he could clearly establish an alibi in regard to any of the matters alleged; · he could not comment or make submissions upon the matter with reference to the other evidence that had been led in the case; · he could not know what other evidence of rebuttal might have assisted his case. (2) The AAT conducted a hearing on 16 August 2001 in the absence of the applicant and his representatives for approximately 25 minutes and, in the absence of any knowledge of what transpired in the hearing during the period when the applicant and his representative were not present, the applicant was deprived of the opportunity of making any submissions in response as to why further particulars should have been provided, or of responding to any matter that was adverse or prejudicial to his case; (3) The AAT failed, prior to the making of the s 500 Decision, to provide the applicant with notice of the material in pars 60 to 62, 64 and 65 of the AAT's reasons. The applicant asserts that, had he been advised of the substance of the identification evidence in regard to Witness 'B', he would have been able to make submissions to the AAT to the effect that the identification made by Witness 'B' should be rejected and he would have adduced evidence that: · when his hair is cut it is a lighter brown than when it is longer; · his eyes are properly described as blue/grey; · eyes of a blue/grey colour are common amongst people from the northern areas of Afghanistan. The applicant also asserts that, had the substance of the identification evidence of Witness 'A' been provided to him, he would have made submissions that the identification should be rejected. Finally, the applicant asserts that, had the substance of the identification evidence of Witness 'A' and Witness 'B' been provided to him, it would have been possible to put submissions as to why that evidence taken together was of slight weight. (4) The applicant was not informed, prior to the making of the s 500 Decision, that evidence of Witness 'A' and/or Witness 'B' was to the effect that he had carried out interrogation procedures at Sederat in Kabul involving ill treatment and torture of suspects in 1989 and probably also 1990. Had he been put on notice by the provision of particulars, prior to the commencement of the substantive hearing, that the evidence of Witness 'A' and Witness 'B' related to events that occurred in 1989 and 1990 in Kabul, he could have sought evidence from at least three further witnesses who knew him in Kabul and he could have obtained documents from a file available from the Afghanistan embassy that relates to his period with the Department of Foreign Affairs of the Afghanistan government. The applicant alleges that the denial of procedural fairness described in those four grounds constituted jurisdictional error on the part of the AAT such that the s 500 Decision was not a decision under the Migration Act and, accordingly, is not a privative clause decision. GROUND 1 – FAILURE TO PROVIDE PARTICULARS 70 The only particulars of alleged war crimes given to the applicant pursuant to the direction of 17 May 2001 were that the applicant, 'after his return from Moscow in 1986, committed acts of torture, inhumane and ill treatment, … against the civilian population of Afghanistan … [including] detention without trial and extra-judicial punishment'. The only particulars of crimes against humanity given were that the applicant 'engaged in acts and atrocities amounting to the systematic persecution of the people of Afghanistan for political, racial or religious reasons'. 71 The applicant contends that failure to disclose the case being mounted against him constituted a denial of procedural fairness: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 108 [57]-[59]. A person in the position of the applicant could not adequately respond to allegations made in terms of Art 1F if he were not adequately informed of the allegations made against him. If there had been no order under s 35 of the AAT Act, the applicant would have been entitled to sufficient particulars of the allegations of facts that were said to amount to war crimes or crimes against humanity to enable him to answer those allegations. Failure to do so would constitute procedural unfairness. 72 The applicant says that, while it may not have been possible to give all of the particulars sought without contravening the s 35 Order, it must have been possible to say something more than was said in the particulars of 25 May 2001. The Deputy President clearly took the view that disclosure of the material contained in par 71 and par 72 of the reasons did not contravene the s 35 Order. Therefore, the applicant says, there is no reason why the contents of those paragraphs could not have been disclosed to the applicant prior to the making of the s 500 Decision. The applicant could then have been invited, so it was said, to indicate to the AAT whether he wished to make further submissions or adduce further evidence in response to those matters, to the extent that he had not already been put on notice that such allegations were being made. 73 In the affidavit that was read on 20 June 2003, the applicant said that, from the beginning of 1990, he started taking lunch in the Ministry of Foreign Affairs building and was introduced to Mr Khalil Cargar and Mr Ghulam Shah Nasrat. He said that from March or April 1990, he worked closely on a daily basis with Messrs Cargar and Nasrat. He said that, from time to time during 1990, and in subsequent years, he invited Messrs Cargar and Nasrat over to the house of his father-in-law and he also attended their homes. During those visits they would discuss work, relax and play cards. 74 The applicant said that he would call Messrs Cargar and Nasrat as witnesses to say that they had known him since the beginning of 1990, that he is a family man of good character, that he was not to their knowledge a member of the KHAD, that he had dark brown hair, that he was not known by the surname now used by him and that they do not believe that he could be the same man that is responsible for the actions alleged to have occurred in 1989 and 1990 referred to in par 72 of the reasons of the AAT. 75 The applicant also said in his affidavit that Mr Kabir Fahrahi, the head of all the Afghan consulates, who had a senior role with the Ministry Foreign Affairs from before his time there, would also be able to give evidence of the eye colouration of Afghan citizens with whom he has had contact, evidence of the name by which the applicant was known, the applicant's character, reputation, employment and evidence that the applicant was not the man referred to in the allegations of conduct in 1989 and 1990. 76 The applicant also asserted in his affidavit that his personnel file would be held by the Ministry of Foreign Affairs in Kabul and that that file would have his name, date of birth, his father's name and the dates of his employment. He said that the file may also have photographs and documents indicating his hair colour as dark brown. He also said that specific alibi evidence, for example, showing that he was not in Afghanistan at a relevant time, may be available from his personnel file. 77 The Minister takes the position that it was not possible to give further particulars because of the s 35 Order and that the applicant had sufficient particulars of the allegations made against him as a result of: * the questions put by the Minister's delegate in interviews; * his being furnished with the reasons of the delegate and the redacted version of the Meeting Summary; and * questions put in cross-examination during the hearing before the AAT on 23 July 2001. 78 Sections 35, 39 and 43 of the AAT Act have an effect on the entitlement of an applicant to procedural fairness. In a case unaffected by those provisions, the content of procedural fairness would ordinarily extend to include at least the following: * being furnished with particulars of the allegations of conduct alleged to constitute war crimes or crimes against humanity; * having access to documentary evidence to be taken into account by the AAT; * being present in the course of oral evidence intended to be taken into account by the AAT; * having the opportunity to make submissions on documentary and oral evidence intended to be taken into account by the AAT. 79 So much is clear from the provisions of s 39(1), which provides that, subject to s 35: 'the [AAT] shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the [AAT] proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.' Thus, absent an order under s 35, an applicant in a proceeding before the AAT is expressly given the entitlements described above. 80 However, the effect of an order under s 35 can be to prohibit the disclosure to an applicant of evidence given before the AAT or of the contents of a document received in evidence by it in relation to the proceeding. It is clear that the AAT Act contemplates that a decision can be made without giving a party affected by it an opportunity to present a case and to make submissions in relation to evidence or documents that are the subject of an order under s 35(2). Thus, the effect can be to restrict severely the right to procedural fairness that would otherwise be conferred by s 39. 81 There is a clear distinction between particulars of allegations, on the one hand, and the evidence intended to be relied upon in order to establish those allegations, on the other. Nevertheless, if furnishing particulars of allegations would disclose part of the contents of a document in respect of which an order had been made under s 35(2), that would be prohibited by the order. The Minister contends that the s 35 Order, and the subsequent order relating to the oral evidence given by Witness 'A' and Witness 'B', operated to preclude not only the disclosure to the applicant of the evidence taken into account by the Deputy President but also the furnishing of particulars of the allegations made against the applicant, in so far as such particulars would disclose material contained in the Confidential Documents. 82 It is possible to contemplate circumstances whereby the giving of particulars of an allegation would involve a disclosure of the evidence by which the facts alleged in the particulars are to be established. For example, if there were an allegation that acts of torture were committed against an individual in private, the only way in which those allegations could be proved might be from the evidence of the individual. Thus, by furnishing particulars of the allegation, even without naming the individual, a witness might be identified. Alternatively, a particular incident might be such that if particulars of the incident were furnished, those particulars might either identify a witness or lead to a chain of enquiry that might identify the witness. 83 The particulars sought by the letter of 26 April 2001 and the particulars directed by the Deputy President on 17 May 2001 required details as to: * precisely when the alleged crime was committed; * the town and precise location where the alleged crime was committed; * the precise actions of the applicant alleged to constitute the crime. 84 The findings in par 71 and par 72 of the AAT's reasons are not specific as to the precise time or place of the alleged interrogation, ill treatment or torture of political opponents and suspects. The findings are no more specific than: * while serving in a KHAD unit in Kunduz during 1986; and * at Sederat in 1989 and probably 1990. 85 In so far as the Deputy President accepted the allegations recorded in the Meeting Summary, the applicant was furnished with particulars of those facts by reason of having been provided with a redacted copy of the Meeting Summary. The findings in par 71 encompass those allegations. If the allegations of Person 'X' and Person 'Y' recorded in the Meeting Summary were the only evidence before the Deputy President, the applicant would have little cause for complaint. 86 The applicant had, and has, no way of knowing whether the allegations made by Witness 'A' and Witness 'B' are of the same facts as are alleged in the Meeting Summary. However, the Deputy President observed that the evidence given at the hearing was 'broadly similar' to the evidence recounted in the Meeting Summary. Therefore, the applicant was at least alerted to the need to deny allegations in those general terms. It was open to him to call evidence of those times and places if such evidence were available to him. 87 On the other hand, the facts found in par 72 do not appear to have been alleged by Person 'X' or Person 'Y'. The facts found in par 72 must be assumed to be based upon evidence of Witness 'A' and Witness 'B'. That is to say, those facts were not recounted in the Meeting Summary. 88 Given that the applicant denied ever having been to Sederat or to a prison at Kunduz, there was no real scope for further evidence as to an alibi on specific dates. The evidence suggested by the applicant in his subsequent affidavit would not have advanced his position in that regard. The applicant was alerted to the nature of the allegations of wrong doing in 1986 as a result of being furnished with the redacted copy of the Meeting Summary. He had an adequate opportunity to respond to allegations that the had been involved in the ill treatment of individuals at Kunduz in 1986. 89 The applicant also complains that it was not made sufficiently clear to him and his advisers that allegations were being made of conduct in 1989. The Minister says that various matters prior to the end of the hearing adequately put the applicant on notice that conduct in 1989 was in issue. 90 The first matter relied on by the Minister is the applicant's statutory declaration of 20 October 1999. However, while it addresses the 1989 year, it does not do so by way of responding to allegations of particular conduct in 1989. It does not, of itself, suggest that the applicant knew of allegations of conduct in 1989. 91 In the interview of the applicant by the Minister's delegate on 25 February 2000, the delegate observed that the applicant had 'played down [his] role in both the PDPA and the army' and put to him that he had 'very responsible positions in PDPA'. The applicant agreed, although he denied that he was a member of the central committee of the communist party and said he was 'just an ordinary small member working in the educational section of the party'. 92 The applicant, when asked whether he was familiar with the place known as Sederat, said that it was 'where the Minister sits'. He was asked whether Sederat had been used as a KHAD interrogation centre but said that he did not have any idea 'about that'. Further, he said that Sederat was 'just across the street to the Ministry of Foreign Affairs', where he was working and that Sederat was at the back of the KHAD, behind the KHAD. He agreed that he knew about the KHAD interrogation centre but denied, when asked, that he had ever interrogated suspected government opponents there. He said that he went to the Ministry of Foreign Affairs and from the Ministry of Foreign Affairs went back to his home. 93 The record of interview of 25 February 2000 refers to allegations of conduct at Sederat, although the questions referring to Sederat are not specific as to time. Immediately after the questions, however, the delegate referred to specific allegations of conduct at Wollayati and Kabul in 1986. The delegate expressly said that they were not talking about the period of time when the applicant was in the Ministry of Foreign Affairs but were talking about the period of time around 1986. The applicant agreed that he was in Kabul for four months in 1986. At that point he was told that it was alleged that he physically assaulted persons being held at Sederat and administered electric shocks to persons there. He was asked to respond to those allegations. 94 The applicant did not join the Ministry of Foreign Affairs until after he completed his military service in 1989. Thus, the Minister contended, the questions put to him by the Minister's delegate would have indicated to him that enquiries were being directed to his conduct in relation to Sederat in 1989. 95 That issue must be considered in the context of the assertion in par 32 of the applicant's statutory declaration of 30 March 2000 as follows: 'When I completed my military service I returned to Kabul. I went back to the personnel officer of the Ministry of Foreign Affairs and explained that I had worked for the Party and completed my military service. He said that I should obtain a letter from the Employment Ministry. I did this. I then had to sit an oral examination on my qualifications – International Law – conducted by three senior officials of the Ministry. I passed this test. I then started working with the Ministry of Foreign Affairs. I had finally achieved my ambition.' 96 The applicant's response to the interview of 25 February 2000 was his statutory declaration of 30 March 2000. That also referred to the allegations of conduct at Wollayati in 1986. It also refers to an allegation that he was involved 'in interrogating people in the Sederat in Kabul' and then said that: 'During the time I was in Kabul in 1986 I never entered either the Sederat or the KHAD central office.' Thus, it is clear that that statutory declaration was a response to allegations of conduct in 1986 and not to allegations of conduct in 1989. 97 In his reasons of 9 August 2000, the Minister's delegate records specific allegations against the applicant by two of the seven members of the local Afghan community. The allegations include the following: '1.2.2 The applicant was head of KHAD… during his period in charge at Kunduz in around 1986 for eighteen months. … Some time after 1986 Person X went to the village of WOLLAYATI (8-9 kms south of Kabul) to visit a relative. One morning about 6 am the applicant and a number of others arrived and entered the house. Person X was first questioned by KHAD. Person X wanted to keep them busy while the others ran away. Two of the KHAD staff had belonged to a certain profession known to Person X (who was also of that profession) whispered in Person X's ear to help them find a particular individual. … Person X visited his brother in law in prison. His brother in law had been denied sleep and he was asked to incriminate Person X. Person X's brother in law told him of the Applicant's crimes. A friend of his brother in law was forced to drink a lot of water. His brother in law was taken to the former office of the Prime Minister known as 'SEDARAT' which was next door to the KHAD central office. Sedarat was the KHAD investigation centre. Person X knew it was the same person as the applicant because one of the KHAD who whispered to him at the Village mentioned the Applicant's name. The time Person X saw the applicant at his brother in law's house was the first and last time he saw him.' 98 In his reasons, the delegate recorded the applicant's response to those allegations as follows: 'He has never heard of a place called Wollyat in Kabul. He has no knowledge of an interrogation centre either in Sedarat or in the KHAD central office. During the time he was in Kabul in 1986 he never entered either the Sedarat or the KHAD central office.' Thus, it is clear that the response of the applicant of the allegations concerning Sederat was on the basis that it referred to events in 1986. 99 In the hearing before the AAT, the applicant relied on a statutory declaration of Mr Ghulam Ghashe Sadiqi of 3 July 2001. Mr Sadiqi was born in Afghanistan and migrated to Australia in 1996. At the end of 1986, he worked in Kabul as deputy in the first political foreign ministry. 100 In his statutory declaration, Mr Sadiqi says that the first time he met the applicant was in 1989, when the Foreign Minister, Mr Wakil, introduced all of the people working in the foreign ministry to the new recruits to the foreign ministry. The applicant was one of those new recruits. Mr Sadiqi said that from that time until he left Afghanistan at the end of 1991, he saw the applicant regularly at work in the foreign ministry. He said he would see him at lunch or after work. Mr Sadiqi said that, in his opinion, based on his knowledge and work experience in the foreign ministry, there was no possibility that the applicant would have been employed by the Foreign Affairs Department at the time that he was if he had worked with KHAD. Mr Wakil implemented a strict policy of not employing any person who had worked with KHAD and that policy was in place at the time when the applicant was employed by the Foreign Minister. 101 Thus, while the statutory declaration addresses the period from 1989 onwards, it was not a response to allegations of specific conduct on the part of the applicant in 1989. It is fair to characterise it as character evidence. It refers to 1989 because that is when Mr Sadiqi first met the applicant. There is no mention of Sederat. There is no basis for concluding that Mr Sadiqi's evidence was a response to specific allegations of conduct involving interrogation in Sederat. 102 On 23 July 2001, the applicant gave evidence before the AAT. After examination-in-chief by his solicitor, he was cross examined by the solicitor for the Minister. Cross-examination is recorded in approximately 55 pages of transcript. The cross-examination was reasonably specific and detailed in relation to events in Kunduz in 1986. However, the only cross-examination directed to events in 1989 was as follows. Minister's solicitor: ' … [T]here are also allegations that when you returned to Kabul in July 1989, … you were involved in the torture and interrogation of people at Sederat. What do you say to that?' Applicant (through interpreter): 'It is strange and is it logical to think I was discharged from military service and a month later I'll go to Kabul and I'll get involved in torture and hurting. Is there any logic in it? I was discharged in July and there are documents in that regard. I was still in Kunduz at the time.' Minister's solicitor: 'I am referring to after July 1989 when you returned to Kabul.' Applicant (through interpreter): 'After July I became an employee of the Ministry of Foreign Affairs and I have documents in that regard showing that I was employed by the Ministry. And I have a witness.' 103 Thus, by 23 July 2001, it ought to have been apparent to the applicant and his legal representatives that allegations had been made that he had been involved in torture and interrogation at Sederat in July 1989. There were subsequent days of hearing on 24 and 25 July and on 16 and 17 August 2001. The applicant gave further evidence on 16 August 2001. The applicant and his advisers, therefore, had a reasonable opportunity to adduce evidence after 23 July 2001 of the nature described in the affidavit read on 20 June 2001 concerning his activities during 1989. 104 In the course of submissions on 17 August 2001, the Minister's solicitor said: 'My next area of concern for the respondent in the fourth area relates to his return to Kabul after July 1989, and particularly his knowledge of the interrogation centre in [Sederat], his joining of the Foreign Ministry, and the allegations relating to him having conducted torture in [Sederat]. I should also note at this point that those matters themselves without a word in cross-examination were raised and dealt with by the applicant in his examination in chief. The applicant was asked when he took the witness stand whether he had made certain statutory declarations in this case …. [W]hat was in those statements contained emphatic denials in relation to certain allegations of criminal conduct which in those paragraphs raised and then denied in quite absolute terms, so by the time the cross-examination started, those things were already on the record, as it were.' Later on, the Minister's solicitor said: 'That also then brings us to the time after July 1989, when he left [Kunduz]. Again, these were issues that which he himself raised in his affidavit evidence and then he practically denied and I just refer the Tribunal briefly to the paragraphs in his evidence where he does do that, and then refer to the evidence in cross examination. Those allegations are put at paragraphs [35, 38 and 41 of his statutory declaration of 30 March 2000]. … He was also asked with regard to his activities upon return from [Kunduz] and particularly whether or not he had any involvement in the torture of people in [Sederat]. His answer was, as it is in the affidavit evidence, that he had no knowledge of it being an interrogation centre whatsoever. Yet when one reads the evidence of Dr William Maley on exactly this point, it becomes clear just how implausible that is. … It is around that time too, that the applicant says that he joined the foreign ministry, and in what we might know of organisational structures, that might tend to imply, as he certainly seeks to say, that he was no longer involved in KHAD, but if one looks at the statement of Dr William Maley … it's quite clear that KHAD operated in quite a different way to what one might expect. … So that evidence amounts to what is already quite clear, we say. That is, there appears to be a civilian string to KHAD as well as a military lean to it, and it appears that its organisation would allow its staffers, if you like, to work in either and to move amongst the ministries. It's at that point that the evidence relating to the applicant comes to some closure, and I'll seek to sum it up as I go through the contentions ….' 105 The applicant's solicitor took up those references in the following terms: 'Whilst my friend says that he gave us particulars in effect because we knew that the allegation was broadly that there was torture in [Sederat] and torture in [Kunduz] in the prison and we denied it completely. That can't cure it because it is possible that the applicant could have provided alibi evidence, I don't know, for the period that it was alleged to have occurred. We don't know. It is possible that he could have been able to say, well, there's a reason why you believe it was me, because now that I'm reminded of exactly when it occurred there was this possibility. I don't know what could have arisen.' … 'I appreciate that my friend says in his submissions that these matters were put in the broader sense to my client and that he was aware of the fact that the allegations were that he had tortured people at various places or at two places and that's true to some extent that he was on notice of those issues.' 106 The last two questions to the applicant in cross examination on 23 July 2001 and the course of submissions to the Deputy President of 17 August 2001 indicate that there was brought to the attention of the applicant and his solicitor the fact that allegations had been made concerning the conduct of the applicant at Sederat in Kabul in 1989. It is not correct to say, as the applicant contends in the statement of claim, that the applicant was not informed, prior to the making of the s 500 Decision, that there was evidence to the effect that he had carried out interrogation procedures at Sederat in 1989 and probably also in 1990. 107 The Deputy President, in his reasons, adverted to the absence of particulars of the acts or activities of the applicant that were alleged to constitute disentitling conduct. The Deputy President observed that the particular acts or activities were not further particularised because 'it was contended to do so would be to act in breach of the confidentiality order' made on 11 April 2001. The Deputy President then went on to observe that he found it difficult to discuss the evidence given by Witness 'A' and Witness 'B' in any helpful detail without running the risk of betraying their identities. He acknowledged that that imposed serious limitations upon the evaluation process and that that was a problem that he foresaw when making the order of 11 April 2001. 108 The relevant part of the s 35 Order was that 'publication or disclosure of the evidence or material contained in [the Confidential Documents]… be prohibited' (emphasis added). The order for the Minister to furnish particulars was expressed to be subject to the s 35 Order. It is apparent from the Deputy President's reasons that he understood that the Minister was contending that the particularisation of the acts or activities of the applicant that were alleged to constitute disentitling conduct would involve the disclosure of material contained in the Confidential Documents. 109 The exchange on 16 August 2001 between the Deputy President, on the one hand, and the Minister's solicitor and the applicant's solicitor, on the other, to which reference is made at [46] above, indicates that, while the Deputy President was concerned about the absence of particulars, that was a matter raised by the Deputy President rather than the applicant's solicitor. It is clear from those exchanges that the Deputy President accepted the submission made by the Minister's solicitor that, by giving further particulars of the alleged disentitling conduct of the applicant, there was a risk that the identity of Witness 'A' or Witness 'B' or Person 'X' or Person 'Y' might be disclosed. In reaching that conclusion, the Deputy President made a judgment as to whether the giving of particulars would have offended against the s 35 Order. 110 The only way to determine whether the s 35 Order would have been contravened by giving further particulars is to examine the Confidential Documents and the evidence given orally by Witness 'A' and Witness 'B' before the AAT ('the Confidential Material'). The Minister's counsel invited me to examine the Confidential Material for that purpose, notwithstanding that the Confidential Material was not made available to the applicant or his counsel. Counsel for the applicant did not wish to be put in the position of having access to the material upon which instructions could not be obtained from the applicant and was therefore unwilling to examine the material. 111 Having regard to my concern about the absence of particulars, I briefly examined the Confidential Material and invited further submissions from the parties, which I heard on 10 September 2003. However, I have now concluded that it is possible to resolve this question without reference to the Confidential Material and I have not taken it into account in reaching the conclusions that I reach below. 112 It may well be that there has been a denial of procedural fairness so far as the applicant is concerned. However, that is the effect of s 35 of the AAT Act, which expressly authorises such a course where an order has been made under that provision. There was no challenge to the s 35 Order. Particulars were to be furnished, subject to the s 35 Order. It was for the AAT to determine whether the giving of further particulars would have contravened the s 35 Order. The question of whether the furnishing of particulars might involve contravention of the s 35 Order, by disclosing material contained in the Confidential Documents, and the question of whether further particulars should be given in the light of the s 35 Order were matters within the jurisdiction of the AAT. Even if the Deputy President reached an erroneous conclusion as to whether the giving of particulars would have contravened the s 35 Order, that was within the jurisdiction of the AAT. The course adopted by the Deputy President on the questions was not outside the AAT's jurisdiction and was not a failure to exercise jurisdiction. 113 I do not consider that Ground 1 has been made out by the applicant. GROUND 2 – PRIVATE HEARING ON 16 AUGUST 2001 114 The applicant's complaint is that, under s 35(1), he was entitled to be present during the hearing before the AAT unless an order had been made under s 35(2). He says that no evidence or material was adduced to the AAT that established any basis at that stage in the proceeding for making a further order under s 35(2) and the Deputy President did not say that he had satisfied himself of the matters referred to in s 35(3) for the making of any order. 115 It is clear that the only discussion that took place in the absence of the applicant and his legal adviser on 16 August 2001 related to whether further particulars should be given. However, the applicant says that, in the course of those submissions, matters could have been referred to that were prejudicial to the applicant and that would not necessarily have been appropriate as the subject of an order under s 35 of the AAT Act. 116 Whether or not the failure to give particulars was a denial of procedural fairness, the exclusion of the applicant and his advisers from argument as to whether further particulars should be furnished does not alter the position. Either adequate particulars had been given or further particulars should have been given. In the first case, there was no denial of procedural fairness. In the second case, if the failure to give particulars was a denial of procedural fairness, nothing turns on the exclusion of the applicant and his legal advisers on 16 August 2001, because Ground 1 would have been established. 117 I do not consider that the exclusion of the applicant and his legal adviser on 16 August 2001 involved any error. GROUND 3 – EVIDENCE OF IDENTIFICATION 118 The findings made by the Deputy President on the question of identification are contained in [60], [61], [62] and [64], the full text of which is set out in Appendix B to these reasons. In those findings, the Deputy President referred to the applicant by the pseudonym Na*** Ah*** SRHHH, in order to avoid contravention of s 91X of the Migration Act. 119 The particulars of identification that were relied on by the Deputy President were: * name * eye colour * rarity of blue/green eyes in Afghanistan * education * hair colour * skin colour * speaking Persian with a Tajik accent * age * height * photographs. 120 The applicant contends that strong submissions could have been made as to the weight that should be afforded to each of those matters. He says that such submissions and evidence could well have had an effect on the mind of a reasonable decision-maker with an open mind and it is possible, therefore, that, had the applicant been given the opportunity of making submissions on those matters, the Deputy President may have reached a different conclusion. 121 The statement of claim particularises the actions that the applicant alleges he could have taken had he been informed of the matters contained in pars 60, 61, 62 and 64 of the AAT's reasons concerning identification. The applicant contends that, had he been advised of the substance of the identification evidence in regard to Witness 'B' as set out in par 60 to par 62, he would have been able to make submissions to the Deputy President to the effect that the identification made by Witness 'B' should be rejected because of the following matters: * Witness 'B' was shown only a group photograph of the applicant and, prior to being shown the photograph, he had been told a member of KHAD was in Sydney. However, as appears from par 60 to par 62, Witness 'B' did not in fact identify the applicant from the photograph. * Witness 'B' had only been in the presence of the applicant for about four minutes, back in 1989. However, it is clear from par 61 that the Deputy President was very mindful of the short exposure of the alleged torturer to Witness 'B'. * The witness relied upon the person he remembered as having green/blue eyes, fair hair and fair skin. The applicant says that, since Witness 'B' relied upon the person he remembers as having greenish/blue eyes, the identification by Witness 'B' should be rejected. However, the AAT clearly had regard to those matters and was mindful of the difficulties of identification. In the course of the hearing on 25 July 2001, it was made clear that the colour of the applicant's eyes was regarded as significant. The Deputy President observed that, at that stage, no-one had given evidence of the colour of the applicant's eyes. The Deputy President went on to say: 'Now that might seem like an odd sort of a comment to make at this stage of the proceedings but it could be relevant. I am not in a position from here to note them for myself. Could there be some agreement on this?' With the consent of the applicant and his legal representative, the Deputy President examined the colour of the applicant's eyes and said that he would call them 'blue/green'. The applicant's solicitor said 'I couldn't add to that'. Thus, it was apparent that the colour of the applicant's eyes was regarded as having some significance and that a finding would be made that they are blue/green. The Meeting Summary also contained an assertion that the person alleged to have engaged in the relevant conduct had 'green/blue' eyes. Clearly, the applicant, and his legal advisors, had ample opportunity to dispute the finding that his eyes were 'blue/green' or 'green/blue'. * The evidence before the AAT was that the applicant's hair was a lighter hue when cut, but at the time of the hearing was very dark. That is a factor the Deputy President clearly had regard to and gave consideration to the weight that should be given to such evidence. In the course of giving evidence on 16 August 2001, the applicant was asked by the Deputy President whether he agreed that it appears from the photograph in his military discharge document that, while he was doing military service, his hair was slightly lighter in colour than it is now. The applicant replied through the interpreter: 'Even now if I shave my hair or have very short hair my hair colour would be this lighter.' On the other hand, the Deputy President's reasons, at par 64, record that Witness 'A' said that the man he knew by the full name now used by the applicant had 'rather light yellowish hair' and that his hair 'was light brown, like a date'. The Deputy President had the opportunity of observing the applicant's hair and his questioning indicated that the colour of the applicant's hair may have some significance in relation to identification. The applicant was recalled so that further questions could be asked concerning the colour of his hair. * There are inherent weaknesses and difficulties that afflict the identification evidence and the witness had not been cross examined. Those are matters that were clearly in the mind of the Deputy President, as appears from his reasons. 122 In essence, while, in ordinary circumstances, a person in the position of the applicant should be afforded a reasonable opportunity to make submissions such are as outlined above, orders under s 35 have a significant effect. There is no reason to doubt that that the Deputy President gave anything other than adequate and appropriate consideration to all of the factors identified. They were all adverted to in the reasons given by him for his conclusions. 123 The applicant has not adduced evidence of any cogency as to further evidence that he might have adduced had he been given the information contained in par 60 to par 62 prior to the making of the s 500 Decision. I do not consider that the failure to furnish to the applicant, prior to the making of the s 500 Decision, the information contained in par 60 to par 62 amounted to a denial of procedural fairness such as would constitute jurisdictional error. 124 In relation to the evidence of Witness 'A', the applicant contended that, had the substance of the identification evidence been provided, his representative would have made submissions that the identification should be rejected on a number of grounds. The statement of claim asserts that the following submissions could have been made: * Witness 'A' gave evidence from an overseas location by telephone and only identified the applicant from a single photograph showing only the applicant. The photograph shown to the witness was a photocopy and appears to have been of poor quality. Witness 'A' was not certain that the photograph was of the person he alleged committed acts of torture and violence. The person against whom Witness 'A' made allegations was slimmer than the person in the photograph. However, all of those matters were adverted to by the Deputy President in his reasons. No submission has been advanced beyond the matters that were clearly taken into account by the Deputy President. * The applicant would have made the same submissions concerning the colour of the applicant's hair and his eyes. The same observations can be made as are made above in relation to Witness 'B'. The AAT had regard to those matters. * Although Witness 'A' had some substantial association with the person against whom the allegations were made, that was a long time ago and his recollection was not fresh. There is no reason to doubt that the Deputy President had regard to those matters in assessing the weight to be given to the evidence of Witness 'A'. * Witness 'A' gave evidence by telephone. His demeanour could not be observed and he was not cross examined. However, those matters were expressly adverted to by the Deputy President and it is clear that he had regard to those matters in deciding the weight to be given to the evidence of Witness 'A'. 125 Accordingly, there was no denial of procedural fairness referred to in Ground 3 such as would constitute jurisdictional error. GROUND 4 – PARTICULARS REGARDING EVENTS AT THE SEDERAT IN 1989 126 This ground assumes the failure of Ground 1. That is to say, if Ground 1 succeeds, Ground 4 would not be necessary. However, the applicant contends that, even if Ground 1 fails, the applicant was not given the same notice of allegations of conduct in 1989 as he was given of the allegations of conduct in 1986. 127 In dealing with Ground 1, I concluded that the applicant has not established that, by the end of the hearing of the AAT, he was not adequately informed that there was evidence that related to his conduct at Sederat in Kabul in 1989. While the circumstances in which he was informed were not ideal, consisting of questions coming at the very end of a fairly lengthy cross-examination, I do not consider that there was a failure to inform the applicant that there were allegations as to his conduct in 1989. I do not consider that Ground 4 is made out. CONCLUSION 128 I do not consider that any of the grounds relied on by the applicant as establishing a denial of procedural fairness that constitutes jurisdictional error has been made out. It follows that the proceeding should be dismissed with costs. I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 30 September 2003 Counsel for the Applicant: Dr C J Birch SC with J Hyde Solicitor for the Applicant: Griffins Lawyers Counsel for the Respondent: R J Bromwich Solicitor for the Respondent: Sparke Helmore Date of Hearing: 12, 16, 19, 20 June, 8, 13, 22 August & 10 September 2003 Date of Judgment: 30 September 2003 APPENDIX A '1.2.2 The applicant was head of KHAD (Khedamat-e Etela'ate Dawlati) or the State Information Service during his period in charge at Kunduz in around 1986 for eighteen months. Being a member of the PDPA or KHAD you can be in any position and fulfil duties indirectly. Some members had ID cards some did not in the jointly run PDPA/KHAD. The applicant had been educated in a specific career and sent to Russia. He joined the KHAD after returning from Russia. After 18 months he went to Kabul. Some time after 1986 Person X went to the village of WOLLAYATI (8-9kms south of Kabul to visit a relative. One morning about 6am the Applicant and a number of others arrived and entered the house. Person X was first questioned by KHAD. Person X wanted to keep them busy while the others ran away. Two of the KHAD staff who belonged to a certain profession known to Person X (who was also of that profession) whispered in Person X's ear to help them find a particular individual. It was said to Person X that his problem was that he was a member of the civilian Afghanistan government – what is he doing with the Mujahadeen? The applicant and his associates were beating Person X before taking Person X away. They were hitting Person X/s brother in law with a pick. Person X's mother who was a widow was begging them not to take her son. Person X visited his brother in law in prison. His brother in law had been denied sleep and he was asked to incriminate Person X. Person X's brother in law told him of the Applicant's crimes. A friend of his brother in law was forced to drink a lot of water. His brother-in-law was taken to the former office of the Prime Minister known as "SEDARAT" which was next door to the KHAD central office. Sedarat was the KHAD investigation centre. Person X knew it was the same person as the applicant because one of the KHAD who whispered to him at the village mentioned the Applicant's name. The time Person X saw the Applicant at his brother-in-law's house was the first and last time he saw him. Person X's brother-in-law told him stores that the Applicant took fingernails and toenails off live people. Person X's brother-in-law was punished so badly he couldn't walk properly. Person X's brother-in-law was also hit by the Applicant with batons to force him into making a false confession. Electric shocks were administered to Person X's brother-in-law by the Applicant. Person X stated that the Soviets were still inside Afghanistan at this time, KHAD was attached to the KGB, and there is no member of KHAD who has not committed a crime. 14 months after Person X's brother-in-law was taken away, Person X was able to visit him in jail as he had been formally sentenced. His brother-in-law is now in Pakistan. His brother-in-law had a document when he was released from jail. Person X may be able to get it if necessary. Person X was asked if he was able to describe the Applicant. Person X said he was in shock at the time but could remember him as medium height with a big head and green/blue eyes. When Person X's brother-in-law was transferred to the central jail Person X could visit him every two weeks. He did this for 3˝ years. Person X would like up outside the prison and his hand would be stamped twice by guards. The prison was named PULICHARKHI and was in Kabul. Person X first heard about the applicant's actions from his brother-in-law when he visited him in prison. 1.2.3 In 1986 Person Y's brother was taken away by the army in Kundux when he was a year 11 student. He was originally supposed to be sent on search activities in the army, however because of his level of education was sent to the KHAD office in Kunduz to help. Kunduz is a small city and the central business district covers only about the equivalent of one block by Australian city standards. Person Y's brother had to look after the prison and look after political prisoners. He was there for 4 months. Person Y's brother was hearing from others about the Applicant. Person Y's brother told him that the Applicant would do investigations of political prisoners after 11pm at night. Investigations were under the Applicant's orders. The Army base and the KHAD office were one facility. Person Y was asked what battalion his brother was attached to. Person Y replied that the Army base was for KHAD and that the army there was a security guard for the investigation centre and prison. Person Y was told these things by his brother after he (the brother) had escaped from the army. Person Y's brother told him that the Applicant would come in every night after 11 pm and interrogate people by beating them and administering electric shocks. Person Y has never seen the Applicant. Person Y was asked whether his brother had ever described the Applicant. Person Y replied that his brother said that the Applicant in fact looked like a Russian. While his brother was there, a spiritual leader was brought to the prison. His title was that of MAWLAWI and his name was Abdul Rab, a well known figure. When the Mawlawi was brought to the investigation centre he asked Person Y's brother to tell the Applicant not to hurt him as he knew Person Y's brother. On hearing this the applicant made Person Y's brother kick the Mawlawi. Person Y's brother couldn't move and was punished by the Applicant and knocked unconscious for his inaction. A few days later Person Y's brother was transferred to the "Defenders of the Revolution" (equivalent to front line troops). He was put into a fleet of army cars heading for the Panchsheer Valley to fight the Mujahedeen. By the time the cars reached Jabul Sarraj it was dark. Person Y's brother was familiar with the environment so he ran away. Person Y's brother is willing to come to Australia from Peshawar to testify against the Applicant. Person Y was asked how many people did his brother witness the Applicant mistreating. Person Y replied 10 a night for 4 months. Person Y was asked whether he had any knowledge of the Applicant after his brother fled. He replied that he hadn't any subsequent knowledge of the Applicant. Person Y was asked why he thought this was the same person as the applicant who was at the IDC. He replied that it was his Russian looks and blue eyes.' APPENDIX B '[60] Witness "B", who gave his evidence first, told me that he met a person who was subsequently identified to him by name as "Na*** Ah*** SRHHH" (i.e. the full name of the applicant, including the surname, used by him in these proceedings) in Kabul in 1989. In the presence and hearing of witness "B" the individual in question was introduced as a member of KHAD. The witness said: "Before the person spoke I thought he was non-Afghan because of his face. Once he spoke I realised that he was Afghan. He was distinctive because he had greenish-blue eyes, fair hair and fair skin and he spoke very calmly with a smile. He had fair skin and he spoke very calmly with a smile. He had fair skin in comparison to an Afghan person in the sense that it was lighter. It had a reddish touch to it. His appearance was comparable to the Tajik people and he spoke in Persian, but with a Tajik accent. He appeared to be a person of 27 or 28 years of age and medium build. My height is 177 centimetres and I estimate him to be about 163 centimetres in height." [61] The witness said that another person who was present, subsequently told him that he in turn had been told by a solider that the individual in question "is a very high official and a very educated man and has got a professor's degree in Marxism/Leninism in the philosophy of Marxism/Leninism". Witness "B" has seen the individual in question on only one occasion but he has particular reason to remember the individual's name because of its similarity to the name of another person known by him. The individual was in the witness's presence for about 4 minutes. He was wearing ordinary western style clothing. He was clean shaven and did not wear spectacles or have any observable scar or birthmark. His hair was of average length and was described by the witness as being light brown – "like date fruit colour, a light date colour". The witness has never been asked to take part in an identification parade to formally identify the applicant, nor has he been to the Villawood Detention Centre for such a purpose. He agreed that Na*** is not an uncommon name Afghanistan and that Ah*** is quite a common name in that country. [62] He was shown a photograph of the applicant in a formal photo of a large group of many people (Exhibit A12) and said "I can't be sure a hundred per cent if he is in the photo". To confront the possibility that the witness's evidence may in some way have been tainted by evidence conveyed by Ms Nasiba Akram, who had arranged for his attendance at the hearing, I asked that she also be sworn and I took some evidence from her as to the circumstances in which she became aware of the potential value of witness "B"'s evidence. She told me that she had spoken to witness "B" and said to him "Do you know another member of KHAD is in Sydney?" She told witness "B" the applicant's name. Witness "B" asked her to repeat the name and he then told her that someone by that name had been present with him in the circumstances which he described to me in evidence. Ms Akram said that she had no personal knowledge of the applicant, had never met him, and may have seen him only once previously when she caught a glimpse of a person she thought may be him at an earlier hearing. She said she could not describe him for me.' … [64] Of particular importance to the respondent's case, was the evidence of witness "A". I had no opportunity to observe the demeanour of this witness, but he answered questions readily without apparent dissimulation or circumlocution. His evidence is of particular importance as he claims to have had a substantial association with the applicant and to have observed first hand many acts of torture and violence perpetrated by the applicant. For these reasons it is particularly regrettable that this witness could not attend the hearing in person, or be present at some form of identification parade. However several photocopies of the photograph of the applicant contained in the army discharge document which became Exhibit A5, were provided to the witness. In view of the length of the association with the applicant claimed by the witness, and the time at which such association occurred I did not consider it to be appropriate to provide him with more recent group photographs which were available among the exhibits. Having regard to the time at which the witness claimed to know the applicant it was also considered that A5 was the appropriate photograph to send to him because a comparison of all photographs in evidence will clearly show the applicant had a significantly different appearance at the time of his discharge from the army than he had at other stages of his life as shown in the other photographs in evidence. His face in A5 is fuller, his hair is shorter, and he is clean shaven. When shown the photograph from Exhibit A5, the witness said, "I am 80 per cent sure it is 'SRHHH'. He was slimmer than shown in the photograph". The witness said that the man he knew as "Na***SRHHH" had rather light "yellowish" hair. He said it was light brown, like a date (the comparison with a date was suggested by the interpreter). He said the hair of the person he knew was not very curly, it was slightly wavy, his eyes were green and he was of medium height. He was clean shaven and had neither a moustache, nor a beard. He wore a uniform, which was different from an ordinary soldier's uniform. It was the uniform of a Toran. The witness said that he knew of no other "SRHHH" in the place where he was at the relevant time, and he knew no one of that name who rode a red motorbike. The witness pointed out that the circumstances, which he had described in his evidence, occurred "a long time ago".'