Applicant B v Minister for Immigration & Multicultural Affairs [1998] FCA 562

EX TEMPORE REASONS FOR JUDGMENT This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 25 July 1997 that it was not satisfied that the applicant was a refugee. The Tribunal affirmed the decision of the Minister's delegate, made on 20 May 1997, not to grant a protection visa. The applicant (in a letter sent to the Court) has expressed fears about details concerning his case being supplied to the embassy of his country in Canberra. As a matter of perhaps abundant caution, when the application came on for hearing this morning, I made confidentiality orders. For that reason and also because it is not necessary to set out the detail of the applicant's claims, I shall not refer to the history of the matter. Such details, including the initial decision within the respondent's department, the applicant's various claims and the like are set out in the reasons of the Tribunal. The applicant asserted before the Tribunal (where he was represented by counsel) that he was entitled to the protection granted by the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees on the ground that he had a well-founded fear of persecution for reasons of political opinion, that he was outside the country of his nationality and was unable or, owing to this fear, was unwilling to avail himself of the protection of his country. The relevant principles in relation to the application of the Convention and the Protocol are well established by the authorities. I shall not recite them here. The Tribunal refers to them in its reasons. In my view, the Tribunal has accurately set out and applied the relevant principles of law. The applicant made a number of claims before the Tribunal. In its reasons (see pages 6-8) the Tribunal sets out those claims. Between pages 8 and 12 of its reasons the Tribunal considered, very carefully, the applicant's credibility. On at least one point (see page 9) the Tribunal expressed a doubt about the applicant's truthfulness but gave the applicant the benefit of that doubt. However, it is clear that the Tribunal disbelieved the applicant in respect of the essential claims which he made. The Tribunal drew in its reasons with the following conclusion (at p 12): "The Tribunal considers that the applicant's account is marred by many very serious flaws as to credibility, to the extent that it cannot be believed. The Tribunal rejects the substance of the applicant's account and finds that the applicant has not had any significant involvement with the [name deleted] or any other anti-government group; that is he is not suspected by the authorities of any such involvement; that he has not experienced any difficulties with the [name of country deleted] government on account of real or imputed political opinion; and that the authorities are not currently seeking him for such a reason." The applicant was not represented at the hearing today. He does not speak English but had the services of an interpreter. At a time when the applicant was represented, his solicitors filed an amended application which set out seven grounds of review. I incorporate into these reasons those seven grounds of review by so referring to them, and I will return to them in a moment. However, from a fairly lengthy document filed by the applicant which has become an exhibit in these proceedings - and by that I refer to the applicant's handwritten letter of 31 March 1998 and the annexures to that document - it seems to me, from that document and also from the oral submissions to me today, that the essence of the applicant's complaints is that he does not accept the Tribunal's findings against him on the question of credibility and its factual findings. As I explained to the applicant at the outset of the hearing this morning, today's hearing is a review of what the Tribunal has done. The review is to ensure that the Tribunal has acted in accordance with the law. That review on the present state of the authorities includes examining whether the Tribunal has acted fairly according to substantial justice and the merits of the case. When I explained that to the applicant this morning, I shortened that to a requirement that the Tribunal must act fairly. I endeavoured to explain the difference between such a review and an appeal on the merits or demerits of the applicant's case. I have read the papers which the applicant filed at the time of his application to the respondent. I have read the submissions which he has made and the other documents which he has filed since that date with the respondent's department, the Refugee Review Tribunal and in this Court. I have examined, in particular, the transcript of the interview conducted by the Minister's delegate on 1 May 1997 and the transcript of the proceedings before the Tribunal on 16 July 1997. One passage of that transcript, being a passage at page 31, was challenged by the applicant as being an inaccurate translation. That passage is reflected in page 11 of the Tribunal's reasons, in a sentence where the Tribunal recites, by description, a portion of the applicant's evidence. The relevant passage was: "He then said that he had been banned from travelling overseas, one or two months before he actually left, after being told by the authorities that they now had evidence of his previous activities." [and this is the critical part] "and his name appeared on a list of people who had been supposed to be (sic) executed fourteen years previously." The applicant said that that was inaccurate and that he had not said that the authorities had told him that "his name appeared on a list of people who had been supposed to be executed fourteen years previously". The applicant produced a tape-recording of his evidence before the Tribunal. With the consent of both parties, that particular answer, and some answers immediately prior to it, were replayed on a tape-recorder. The applicant accepted that the tape-recording was a record of his answers. Again by consent, an interpreter, Mr M Emamy, who had been interpreting the applicant's submissions to me, was sworn to interpret that answer and the earlier answers and say whether the translation which appeared in the transcript of the proceedings was accurate. Mr Emamy produced a written translation of the relevant portions of the evidence which became exhibit "A" in these proceedings. The answers leading up to the critical answer which the applicant challenged as being inaccurate are not complete and accurate translations of what in fact the applicant said in Farsi. However, when one comes to the critical answer, the translation reads: "Their second evidence was I was among the group of 150 people which they were supposed to be executed. I was not executed." The respondent made a concession that the translation which I have just read out was not quite correct. In my view, it was substantially correct, and while it may not be word for word what is in the Tribunal's reasons, the essence of it is there. That is, that the applicant did in fact say that the authorities had said that their second evidence was to the effect that I have just read out. In any event, that was not the crucial point at this stage of the Tribunal's reasons. The crucial point was the allegation by the applicant, again at page 31 of the transcript of the proceedings before the Tribunal, that he was detained and tortured two months before departure, and that this was not mentioned until the hearing before the Tribunal. It came, as it were, out of the blue. It had not been mentioned in the initial application to the respondent for a protection visa. Nor was it mentioned in the period leading up to the interview before the Minister's delegate although, significantly, two other detentions and periods of torture in 1980 and, I think, again in 1988 were specifically mentioned. This third alleged detention and interrogation and torture did not surface until the question arose at that time recorded at page 31 of the transcript before the Tribunal. That was the crucial matter which led the Tribunal to make this finding, towards the end of page 11: "The Tribunal finds that this claim is false and that the applicant was not, at any time in 1996, detained or tortured or ordered not to leave (confidential)." I note that the applicant was given a period of seven days after the hearing before the Tribunal to make further written submissions to it. As I have mentioned, at that stage the applicant was represented by counsel. No such submissions were filed. I have read and re-read the Tribunal's reasons for decision very carefully. I have been unable to discern any error of law on the part of the Tribunal. Furthermore, in my assessment, the Tribunal, in particular, treated the applicant fairly. There was ample evidence upon which the Tribunal was entitled to make the credibility findings which it did make, and to which I have just referred. I now turn to the formal grounds for review, of which there are seven. Grounds 1, 2, 4, 5 and 6 really fall within the one category of whether the Tribunal acted according to substantial justice and the merits of the case. For the reasons which I have just given, in my view, it did act according to substantial justice and the merits of the case. As to ground 3, which reads, "The Tribunal members' decision was affected by bias", I have read the transcript of the oral hearing before the Tribunal. As I say, I have also read its decision. In my opinion, there was no evidence that the Tribunal had a closed mind to the issues raised, and was not open to persuasion by the applicant's case. In my opinion, the Tribunal's situation was at the opposite end of the spectrum, or very close to the opposite end of the spectrum, at the other end of which would lie the decision reviewed in the Full Court case of Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505. I find that there is no evidence of actual bias. The seventh ground was that the Tribunal member incorrectly interpreted or incorrectly applied the terms of the Migration Act 1958 (Cth) when determining whether the applicant had a well-founded fear of persecution within the meaning of that term as used in the Refugees Convention. As I have mentioned, in my view, the Tribunal correctly identified the legal principles applicable to the decision, and correctly applied those principles. The key to the matter was that it disbelieved the applicant and, having made that decision against him on the matter of credibility, dismissed his claims upon which the application for the protection visa was based. In my view, the Tribunal did not deny the applicant substantial justice, and did not directly contravene s 476 of the Migration Act in reaching its conclusions. My reading of the documents before the court is that the Tribunal acted in accordance with substantial justice and the merits of the case. For those reasons, the application will be dismissed. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of Justice Carr