Findings and Inquiries as to Police Documents - Grounds 3, 4 and 5
61 By these grounds of appeal it was asserted that the learned primary judge erred in:
1. Failing to determine that the RRT should not have rejected evidence relied upon by Ms Yilan concerning the "Notice to Security Organisations in Cankaya" and the Summons dated 8 January 1996.
2. Failing to determine that the RRT should have considered whether to conduct inquiries as to the authenticity of the said Notice and the said Summons.
3. Failing to determine that the RRT should have had inquiries made as to the authenticity of the notice and the summons.
62 The Tribunal referred to the Notice of 18 October 1995 but did not accept that it was what it purported to be. That non-acceptance must be seen in context of the Tribunal's reasons where it said:
"The applicant claimed she was a supporter of, and involved with Dev Yol. Her level of knowledge of Dev Yol, for example its direct descent from Dev Genc, was such that I do not accept that she was involved to the extent which she claims to be. I do not accept that the Notice to the Security Forces, mentioned above, is what it purports to be. The police had ample opportunity to arrest her prior to her departure from Turkey; she had not done anything after the alleged arrest in March 1994 which would have alerted the police to her "involvement" if they did not already know about it. I accept that coincidences do happen, but I do not accept that although the applicant was able to go about her life without interference from March 1994 until her departure in July 1995, the police started looking for her, trying to arrest and/or summons her, only after that departure."
And later in its reasons the Tribunal said of the summons specifically:
"I do not accept that the summons is what it purports to be. The applicant departed the country on a legal passport in her own name. If the authorities were looking for her, they would be able to ascertain that she is no longer in Turkey."
63 The learned primary judge said that in this case only copies of the documents relied upon had been provided to the Tribunal, who came to the conclusion that they were not genuine. As she correctly pointed out, the Tribunal had relied upon background material and the view it formed as to Ms Yilan's credit. Having formed the view that Ms Yilan was not deeply involved in the activities in which she claimed to be involved, the likelihood of the documents having come into existence in the way that they purported to come into existence was found to be remote and rejected by the Tribunal. Her Honour considered, contrary to the submissions made on behalf of Ms Yilan, that the Tribunal was entitled to make the finding that it did without any question or further inquiry as to the authenticity of the document. The bases of the finding were properly dealt with in the decision and the case was not one where to fail to ask the question whether a further inquiry should be conducted amounted to a breach of substantial justice.
64 To this observation may be added the comment that even if the failure to inquire constituted a breach of the requirement of s 420 for substantial justice, that breach does not give rise to a ground of review under s 476.
65 Counsel for Ms Yilan argued on the appeal that the failure by the RRT to ask itself the question whether it ought to have conducted inquiries about the authenticity of the documents was a breach of a positive duty and moreover that in failing to conduct such inquiries it had acted in breach of its duty. Reliance was placed by counsel for Ms Yilan in supplementary submissions upon the provisions of ss 424, 425(1)(b) and 427(1)(d) of the Act. These provisions, it was said, gave rise to a procedural requirement, failure to comply with which would be reviewable under par 476(1)(a). This argument bypasses s 420. Section 424 deals with review on the papers and imposes no procedural requirement relevant to the present case. It is, however, to be read with s 425. In the case in which s 424 does not apply, s 425 obliges the Tribunal to give the applicant an opportunity to appear before it to give evidence. That requirement was met in this case. It also empowers the Tribunal to "obtain such other evidence as it considers necessary".
66 Consideration was given to this provision by Foster J in Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 289 where his Honour, after referring to par 425(1)(b) and par 427(1)(d) said:
"The legislation, therefore, in my view, imposes upon the Tribunal (at least where circumstances so dictate) an obligation to consider whether it is necessary to obtain further evidence for the proper conduct of the review. A failure to enter upon this consideration would be reviewable error."
However the decision of the Full court in Minister for Immigration and Ethnic Affairs v Singh (supra) lies against Ms Yilan on this point. The observation of Foster J in Yao-Jing must be read subject to it. The Singh case was concerned, inter alia, with the conclusion by the RRT that documents purporting to be warrants for the arrest of the applicant and his wife in their home country were not authentic. It had been held at first instance that the Tribunal should have verified the authenticity of the warrants through official channels. Allowing the appeal, the majority (Black CJ, von Doussa, Sundberg and Mansfield JJ, Lee J dissenting) said, at 561:
"Although we have concluded that there may be circumstances in which the Tribunal's obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge's general proposition that where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the Tribunal through official channels, if by that her Honour intended to convey (as the respondent suggested) that the Tribunal was under a duty to verify in such cases. In a particular case the Tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect."
The Tribunal in that case had been given no information about the provenance of the warrants other than that they were forwarded with letters which it was entitled to conclude were not authentic. And although a failure to ask the Tribunal to exercise its power to make inquiries could not be decisive there was nothing to indicate in that case that it was ever suggested to the Tribunal by the applicant or his agent that it should take any steps of its own to authenticate the documents in question. No such request was made in this case. Ms Yilan was represented throughout and her representative was present at the Tribunal hearing (AB 109).
67 At the oral hearing the Tribunal put questions to Ms Yilan about the Police Notice. She was asked how she got it. She said that after she came to Australia her father sent it to her. She was asked how her father had got it. She guessed he had obtained it with a bribe. The Tribunal put it to her that there was nothing in the Notice that was not known to the Police at the time she had been arrested. Ms Yilan said this was an excuse to call her in and arrest her one way or the other.
68 The Tribunal inquired about the document from the person whom one would expect to have been in a good position to give evidence as to its authenticity. Given the responses which the Tribunal received and the surrounding circumstances to which it adverted in its decision, the Tribunal had every reason to come to the conclusion it did. It had no obligation to embark upon a further inquiry as to the authenticity of the document. Nor was there any obligation to set out in its reasons a statement to the effect that it had given consideration to embarking upon a further inquiry. It had made inquiry at the hearing and the sufficiency of that inquiry is not a matter which is able to be considered upon review by this Court.
69 An additional submission was put that it was not open to the RRT in circumstances where there was no evidence to the effect that the two documents were not what they purported to be, to have rejected this portion of the appellant's case. Plainly, however, the Tribunal was entitled, on the evidence it referred to, to come to the conclusion that it did not accept the authenticity of the documents. The lapse in time between the events referred to by Ms Yilan and the Notice and summons which were allegedly issued in relation to her was material the Tribunal was entitled to take into account in coming to the conclusion that the documents were not authentic.
70 For these reasons Grounds 3, 4 and 5 of the appeal cannot succeed.