Badri, Khalid Jabar Al v Minister for Immigration and Multicultural Affairs

[1998] FCA 1038

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		NG 381  of  1997
BETWEEN:	KHALID JABAR AL BADRI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	26 MARCH 1998
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

1. The solicitor for the Applicant personally pay the costs thrown away by the adjournment of the proceedings on 5 February 1998.

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	NG 381  of  1997

BETWEEN:	KHALID JABAR AL BADRI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	26 MARCH 1998
PLACE:	SYDNEY

EX TEMPORE EASONS FOR JUDGMENT

HIS HONOUR:   I have before me an application for an order for review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 22 April 1997. The Tribunal decided that it was not satisfied that Khalid Jabar al Badri (“the Applicant”) is a refugee and affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) delegate not to grant to the Applicant a protection visa.

The Applicant entered Australia on 4 October 1996 using a false passport of a French national.  The Applicant applied to the Minister for protection as a refugee on 15 November 1996.  The delegate of the Minister made a decision on 7 March 1997 to refuse the application.  The Applicant was notified of that decision by letter of that day and he applied for review of the decision on 13 March 1997.

A number of grounds were specified in the amended application. The solicitor for the Applicant indicated at the beginning of the hearing that the only ground relied on by the Applicant, notwithstanding the terms of the amended application, was the ground specified in section 476(1)(a) of the Migration Act 1958 (Cth) (“the Act”), namely, that procedures which were required by the Act or the Regulations to be observed in connection with the making of the decision were not observed.

The solicitor for the Applicant indicated that the only procedures upon which reliance was placed were the procedures specified by section 420(2)(b) of the Act. He did not rely on any procedures required by the Regulations to be observed. Section 420(2)(b) provides that the Tribunal, in reviewing a decision, must act according to substantial justice and the merits of the case. There has been some difference of view expressed by members of the Court as to the extent to which section 476(1)(a) imports a provision such as section 420. It is accepted by the Minister that I am bound by the decision of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, although counsel for the Minister formally submitted that that decision was wrong.

There appear to be three matters relied upon by the Applicant as constituting a failure on the part of the Tribunal to act according to substantial justice.  The first concerns the refusal of adjournments by the Tribunal.  The second involves an assertion that there was a bias on the part of the Department of Immigration and Multicultural Affairs (“the Department”) which in some way filtered through to the conduct of the proceeding by the Tribunal in that there was an endeavour to establish not the identity of the applicant but that he was somebody else.  The third matter, although it is related to the second, is that there was a failure by the Tribunal to discharge its primary obligation to find out who the applicant was and what was his nationality.  It was said that the Tribunal fell into error in not taking that as a primary consideration.  I shall deal with each of those matters separately. 

In order to establish the second and third matters I was taken to parts of the file of the Department and the file of the Tribunal.  It is necessary to recount the material to which I was taken in order to deal with these two matters.

On 10 January 1997 a file note was brought into existence under the heading, “Iraqi Detention Cases”.  The note says inter alia as follows:

These cases have been with investigations at Bankstown RO for the past month as one of the applicants is a suspected people smuggler.  They were both returned to me only this morning.  I had arranged to interview both these applicants at VIDC in early December but was told by Canberra not to do any processing until investigations had finished with them.

On 23 January 1997 a facsimile transmission was despatched by the Minister's delegate to Robyn Hawkin, another officer of the Department, saying inter alia as follows:

I interviewed both PV applicants yesterday and must say that I am satisfied that they are both Iraqis.  Regarding Al Badri I asked him if he knew Mustafa Larjani and he stated he used that name in South Africa when applying for asylum there pretending to be an Algerian.  I showed him the documents you sent me and recognising his handwriting stated they were his writings.  I asked the interpreter if he could have been a Moroccan and she stated she was convinced he was Iraqi.  Another case officer in DORS who is an accredited interpreter has stated that the Arabic used in your documents indicate that it is Iraqi and not Moroccan.  I asked Al Badri about Assadi and he maintained he only met him in the plane on the way out of South Africa.  Regarding Assadi he is an Iraqi Kurd.  I had no problems understanding him but the interpreter has some difficulty.  She has never spoken to a Kurd before.  I asked Assadi if he knew Mustafa Larjani and he said he never heard that name before.  I asked him if he had met Al Badri before the plane trip and he said no.  I told him that the routes taken by both out of Iraq to Iran, SA and finally Australia are very similar and I was having difficulties believing this to be co‑incidental.  Assadi stuck by his words and maintained he never met Al Badri prior to the plane trip.  During the entire interview Assadi came across as genuine and credible.  Neither applicants appeared to us like Moroccans or North African, they seemed more likely to be Middle Eastern.

A handwritten note of 28 January 1997, also apparently brought into existence by the Minister's delegate, recorded a telephone conversation from Robyn Hawkin.  That handwritten note says as follows:

Robyn advised that fresh photographs of Al Badri and Assadi were obtained and put to the Moroccans in Perth.  They have all identified Al Badri as being Mustafa Larjani, a Moroccan, that grew up in the same district as one of the detainees in Perth.  All three have put in a stat dec describing him as Larjani, a Moroccan.

On 29 January 1997, a minute headed “Al Badri and Assadi” was forwarded to the Minister's delegate by Robyn Hawkin saying inter alia as follows:

As discussed earlier today I am sending this (brief) report to you following identification of the above persons by Moroccan nationals.

I obtained photos of Al Badri and Assadi and yesterday I took them to the Perth Detention Centre where I showed them to the Moroccan detainees individually and without the others knowing.  Each of the Moroccans identified Al Badri immediately as Mustafa Larjani a 29 year old Moroccan national who they had known in Casablanca and who they had met up with in Cape Town.  Mr Bahajou admitted that Larjani had lived in the same street in Casablanca as he had and El Filali also stated that Larjani and Bahajou came from the same street in Casablanca.  All of the Moroccans identified Larjani without hesitation and El Filali and Bahajou both identified Assadi who they know as Nejhar.

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A statement was obtained from each of them and they signed the back of each photo identifying Al Badri as Mustafa Larjani.  Bahajou also admitted that Larjani had given him the handwritten document and he, Bahajou, had not disposed of them as instructed.  The plan was for them to be Iraqis when they arrived, if they had been refused entry at the airport, but as they got through they disposed of all the false passports and then admitted they were Moroccans.  They also advised me that Mustafa Larjani applied for asylum in South Africa. They claimed not to know the outcome of that application.

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I am concerned that your interpreter was convinced Al Badri was Iraqi and wonder how much experience she has actually had in interviewing Moroccans and or Iraqis.  The interpreter used here is Syrian and he was able to identify what part of Morocco my detainees came from.  Clearly, then Al Badri is not Al Badri nor is he Iraqi.  This then negates any claims he has made as Iraqi...

On 3 February 1997, an e-mail communication took place between the Minister's delegate and Robyn Hawkin.  Robyn Hawkin said in part:

It took a while until I was able to establish that Al Badri was probably Larjani, and then I had to wait until photos were received to actually have him identified by the Moroccans in Casablanca and Cape Town.

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It was very involved because the Moroccans lodged their first PV application, then withdrew them, then lodged second applications within days, if not hours, and I could not interview them while they had applications before us.

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As to why Larjani and Assadi lodged in New South Wales I think it is because the network of people assisting North African asylum seekers is greater in Sydney and this is evident by the length of time the applicants are in the community before seeking asylum with us.  Larjani being the organiser probably has a very wide network of people and adequate funds.  I am aware of various South African originating people, smuggling organisations not specifically involving Iraqis.  However, you may not be aware that according to the South African police Home Affairs Department there are more than four million unlawfuls and people seeking asylum in South Africa from all over Africa, North Africa.  If we recognise photos, some passports at the border and no claims for asylum are made we refuse entry, but when they destroy whatever documentation they had before arrival it is a very difficult and time consuming process establishing who they actually are and who else is involved.

The delegate responded saying:

Can you tell me what made the other Moroccans change their minds and come out with the truth;  was there any reason given why they travelled to Perth whereas Al Badri and Assadi came to Sydney?  Are you/they aware of a network now operating in South Africa, particularly for Iraqis?

The response included the following:

My Moroccans left Perth yesterday on a Qantas flight for South Africa.  They were so desperate to be reunited with their wives and a child due soon, and could not wait to get out of Australia.

The delegate's decision was made on 7 March 1997.  Following the application for review, on 20 March 1997 the Tribunal sought information in relation to the Applicant including the following:

Is there any way we can find out, say, from South African government, the nature of his application and some way to identify him as being Larjani. 

The response to that question was received on 2 April 1997.  Mr Cane, who had replaced Robyn Hawkin, stated that:

Compliance, Perth, had no further information on RRT applicant N97/14238 since 3 February 1997 when R Hawkins sent Manir Bhatzoun of Dimaorp -

...copies of the declarations of several Moroccans confirming that the applicant's identity was other than he had stated and Manir replied that he would reinterview the applicant.  Mr Cane added that the originals of the Moroccan's declarations can be borrowed from Compliance, Perth, if required.  Mr Cane said that the Moroccans who had made the declarations left Australia for South Africa. 

In the course of the hearing before the Tribunal the Member asked a number of questions of the Applicant and his interpreter.  At the beginning of the hearing the Member asked:

The interpreter, I would like to impress upon you, is a professional interpreter.  He is required by the code of ethics of his profession not to reveal any information that he learns during the proceedings to anyone other than is required by law.  We are recording the proceedings today hence the microphones.  The purpose of the recording is so that there is an accurate record of the proceedings.  I am going to now ask the interpreter to make a statement that he will keep the information he learns confidential.  Just before I do that, let me ask you whether you are having any difficulty understanding the interpreter.

The Applicant replied:

We are both from the Middle East and we understand each other.

The Member subsequently asked the Applicant why he used the named Mustafa Larjani.  The Applicant was asked whether he made it up.  In the absence of any answer that was responsive to that question, the following exchange took place:

Member:        What I want to know is did you make up that name?

Applicant:      Another person, he provide me this me this name.

Member:        And who was that other person?

Applicant:A young man from Algeria, yes, he got him from Algeria and he held service station.

Member:        And was that his name?

Applicant:      Salem, who say that I am.

Member:        Is that the man who owns the service station?

Applicant: No this man is Algerian who works for the boss who owned the service station.

I was then referred to other questions and responses as follows:

Member:Official document that is prepared in April 1995 and stated to be so would not be produced sometime after October 1996.  It is not genuine.  It was made upon your request for information you provided to your family.  How they provided that is unknown.  I put it to you that it is not genuine?

Response:My parents they are in Iraq.  I sent them in two letters, one to the officer and one to them and they said when it will be ready we will send it to you.

The Applicant was then asked some questions about the evidence before the Tribunal relating to the three Moroccans, as follows:

Let me ask you other questions.  As I understand it three people who have told the Department of Immigration that they are Moroccans.  These three people, Moroccan nationals, who were in Australia made statements to the Department of Immigration, this is in Australia, that they could identify you from your photograph.  Identify you as Mustafa Larjani, a Moroccan national.  They say that they know you and they have known you for many years because you lived in the same area of Morocco.  These are three separate people who made this identification of you and state they know you as a Moroccan national.  Can you explain why three separate people would identify you by name which you have confirmed as a name you had assumed:

There was no responsive answer to that question. The Member continued:

Member:        As far as you know where are these three people from?

Applicant:      Actually Mustafa is Moroccan, they are Moroccan.

Member:They have individually identified you and said that they knew you in Casablanca.  Have you been in Casablanca?

Applicant:      I heard of Casablanca but I never been there.

Member:Is there any reason that you know of that these three people would identify you as Mustafa Larjani from Morocco?

There was then a non responsive answer.

Member:But I am trying to find out why would these three people who say you know one of them but you don't know the other two very well, why would they identify you as a Moroccan national?

Applicant:If I once Moroccan or Algerian I'm going to content to have ask for refugee status in Australia.

Then shortly thereafter the Member said to the Applicant:

If you say that you are from Iraq and you apply for refugee status in South Africa you say you have genuine reasons for applying for refugee status, why wouldn't you tell the South Africans your true story, your true identity and ask for asylum as a refugee of Iraq?

There was no responsive answer.

I have set out that material as the material relied upon by the Applicant to demonstrate a wrong approach on the part of the Tribunal.  I find not the slightest hint in that material of any incorrect approach on the part of the Tribunal.  There is nothing in that material to suggest that the Member was doing anything more than endeavouring to put to the Applicant the concerns which the Member had and to give the Applicant an opportunity of refuting those concerns.  There was no satisfactory response given to any of the material.

There is, from the material which I have set out, an indication of a difference of opinion between officers of the Department as to whether or not there was doubt as to the identity of the Applicant.  That doubt might arise from the evidence that an interpreter was of the view that the Applicant was an Iraqi.  However, all of that is evidence which was before the Tribunal and upon which the Tribunal expressed its view.

It is not a function of this Court, having regard to the limited nature of the grounds of review under section 476 of the Act, to re-examine that material. There was material before the Tribunal upon which it could have reached the conclusion which it did. Putting that aside, however, there is no basis for concluding that the Tribunal conducted the hearing with a view to establishing that the Applicant was Mustafa Larjani.

The material rather indicates that the Tribunal, having received evidence before it in the form of statements by three Moroccans identifying the Applicant as a Moroccan, considered that the Applicant should be given the opportunity of responding.  The Applicant failed to give any possible explanation as to why the Moroccans may have falsely identified him as a Moroccan.

In its reasons for its decision the Tribunal recorded that the Applicant had been asked if he had any proof of his nationality.  He produced a laminated document bearing a photograph and name which the Applicant said was an identity card issued by Iraqi government officials.  He said that he was asked for proof of his identity during the first interview by the Departmental officer in January 1997 and that after the interview he wrote to his relatives in Iraq to ask them to obtain an identity card for him.  He sent them the photograph of himself and details so that the identity card could be prepared.  He said that he was sent the laminated document which contained the photograph he sent and the details he provided to his uncle who lives in Jordan.

The Tribunal told the Applicant that it did not accept that document to be authentic as it was dated 5 April 1995. That was a time when the Applicant was not in Iraq and it is not consistent with his own statement that he sent the information and photograph used in the document to his relatives after he came to Australia and after the interview in January 1997.  The Tribunal also observed that there was no name or signature on the document of the person who authorised the document.

The Applicant told the Tribunal that he does not know how the document was obtained.  However, he suggested his family may have bribed officials to get the document.  The Tribunal also told the Applicant that he was identified to Immigration officials in Perth in January 1997 by the three Moroccan nationals, who entered Australia from South Africa, as Mustafa Larjani, a 29 year old Moroccan national who they knew in Cape Town and who provided them with false passports and documents to enter Australia.

The Applicant told the Tribunal that he was told about the identification of him by three Moroccan nationals in Perth by the Department officer who interviewed him in relation to his present application for protection as a refugee.  The Applicant told the Tribunal that he knew one of the Moroccan nationals, Mustafa, who was a friend.  He said that they had worked together at the same petrol station in Cape Town.  He gave Mustafa a paper containing details of Iraq to help Mustafa apply for refugee status.  He prepared this information when he was sitting outside the airport after his arrival in Sydney after arriving from South Africa.

The Applicant was also shown handwritten documents written in Arabic found in possession of the three Moroccan nationals.  The documents were translated.  The Applicant confirmed to the Departmental officer that he wrote the information contained in the documents found in the possession of the Moroccan nationals in Perth.  He said the information was about Iraq and was to help the Moroccan national, Mustafa, apply for refugee status under a false identity as an Iraqi national when he arrived in New Zealand.  He said that he telephoned Mustafa in South Africa and asked him why he gave information about him to the Immigration officials in Perth.  Mustafa denied giving any information to the officials.

The Applicant said, as the Tribunal recorded, that he had met the other two Moroccan nationals in Cape Town but did know them well.  He did not know why they would identify him as a Moroccan national to immigration officials in Perth.  The Tribunal's conclusion was that, in view of the Applicant's explanation of how he obtained the document referred to above, the Tribunal did not accept that the document provides plausible verification of his identity and nationality.  The Tribunal considered that it was implausible that Iraqi officials would provide a document of identity to a citizen who was sought as a deserter from the army.  Further, the Tribunal, not having satisfactory evidence to support the Applicant's claim that he was an Iraqi national, nevertheless had evidence from the three Moroccan nationals who have each independently of one another identified the Applicant as a 29 year-old Moroccan national.

The Tribunal, in its reasons, observed that the Applicant had not provided a reasonable explanation as to why three Moroccan nationals would falsely identify him as a Moroccan national who supplied false passports and documents for them in South Africa to travel to Australia.  Rather, the Applicant confirmed that he knew the three Moroccans and that he used the name by which the Moroccan nationals identified him.  The Tribunal indicated that it was satisfied that the Moroccan nationals had provided credible evidence of the Applicant's identity as a Moroccan national who lived in Casablanca prior to living in South Africa and the Tribunal did not accept the Applicant's claim that he was an Iraqi national.  The Tribunal therefore concluded and made a finding of fact that the Applicant is a national of Morocco.  That finding, it appears to me, was open to the Tribunal on the evidence and materials before it. 

There is nothing to suggest that the Tribunal set about endeavouring to establish that the Applicant was a Moroccan rather than endeavouring to establish his nationality.  The complaint made on behalf of the Applicant is that the Tribunal had an obligation to establish the nationality of the Applicant and that rather than trying to establish whether the Applicant was an Iraqi, the Tribunal endeavoured to prove that he was someone else.  That submission is simply not made out on the material to which I have referred.  In the circumstances, I do not consider that there is any basis for concluding that, in the way the Tribunal approached the task before it, it failed to act according to substantial justice and the merits of the case. 

The other matter relied upon as constituting a failure to comply with section 420 of the Act concerns refusal of adjournments. It was said that on two occasions the Tribunal refused an adjournment to the Applicant to enable him to obtain further evidence. That allegation requires a consideration of the two files relating to the determination of the Applicant's application for refugee status.

In his original application of 15 November 1996 the Applicant completed a form which required an answer to this question:

Did you have difficulties obtaining a travel document such as a passport in your home country?

The answer was:

Yes.

With the following notation:

Had not done military service so I could not be entitled to a passport.

That has some significance in that there could be no suggestion that the Applicant wanted to obtain a passport from Iraq. 

In a further form which he completed the Applicant was required to list all the documents as follows:

Please list all the documents you are not providing with this application but will be providing later (for example, certified copies of passports, birth certificates, evidence of dependency).

The response was:

Other documents may be supplied later.

Thus it was apparent at that stage that the Applicant was aware of the need for documents in support of his application for a protection visa and the need to produce evidence of his identity. 

There is in the departmental file a handwritten note which bears no date but appears, having regard to its place on the file, to be dated in the third or fourth week of January 1997.  It contains, inter alia, the following:

Material to come Al Badri, Iraqi ID, sent letters to family in Iraq in December...first letter sent one month, three weeks, second letter three weeks. 

In the delegate's reason for decision of 7 March 1997 the following is recorded:

It was put to the applicant that the information at hand was very conclusive about his Moroccan nationality.  It was put to him that unless he was able to provide conclusive evidence refuting the one on hand I was of the opinion that his claims to being an Iraqi national would not be his real identity.  The applicant was asked if he wished to submit new claims against Morocco.  He said, "No," insisting on being Khalid Jabar Al Badri, a national from Iraqi. 

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The applicant was reminded that on 22 January he stated that he had requested documents from Iraq ascertaining his identity as an Iraqi.  He was given three days to submit them.  He was advised that, to date, none had been received.  He said he was still trying to obtain them and as soon as they are received he would forward them to the Department.  He said calling Iraq from South Africa was easier than from Australia.  The applicant was given another three days to provide the Department with proof of his Iraqi identity.  It was put to the applicant that unless and until he did so he could not be considered as an Iraqi national.  Given the nature of the evidence at hand and his inability to refute any of the claims made against him, I cannot accept that the applicant is Khalid Jabar Al Badri, an Iraqi national.

That reference in the reasons might suggest that the handwritten note to which I have referred above was brought into existence about 22 January 1997.  One must bear in mind that in considering an application such as that which was made to the Tribunal, the Tribunal is under an obligation to decide the matter quickly and fairly.  That involves a balancing exercise.  One of the matters which is significant is that the Applicant was at the time in detention.  Clearly, detention cases ought to be given priority and should be resolved with expedition.

Against that background it is necessary to consider the requests to the Tribunal for further time.  On 20 March 1997 the Tribunal informed the Applicant's immigration representative at the Villawood Detention Centre that a hearing had been arranged for 25 March 1997.  On the same day the Applicant's migration consultant told the Tribunal that he would be unable to attend the Tribunal hearing set for 25 March and requested that the hearing be scheduled for another day.  On 21 March 1997 the Tribunal informed the Applicant that a hearing had been arranged on 7 April 1997.  The Applicant's immigration representative was informed at the same time.

On 4 April 1997 the migration consultant acting for the Applicant sent a facsimile transmission to the Tribunal saying:

We advise that my client wishes to adjourn this hearing to a latter (sic) date given that he is awaiting some documents to be sent to him from overseas which will be relevant to the hearing proceedings.  My client has furthermore advised me that he is expecting to receive these documents in a few days time.

The response of the same day was:

The member does not grant the adjournment as requested and the hearing will proceed as scheduled.  The member is willing to provide a period of three working days after the hearing to 4 pm, 10 April 1997 in which further submissions will be considered.

In the course of the hearing the Tribunal asked the Applicant about the document to which I have referred above and I set out some questions and answers:

Member:I want to know how this particular document came into being.  Did you apply for it yourself personally.

Applicant:My parents, they make the application.  I am here thanks to my parents.

Member:        And the photograph, did you send that from Australia.

Applicant:      Yes.

Member:So what you are saying is that you sent this photograph to your parents in Iraq and they got this document made, is that what you mean?

Applicant:      Yes, possible.  Those could be obtained other ways.

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Member:Well just tell me what they said to you.  How did they get this document?

Response:I could not contact them by telephone because no communication.

Member:        All right so how did you send them a letter?

Applicant:      I sent letter from here to Iraq.

Member:All right, and when they sent it back to you did they give you any explanation of how they got the documents?

Applicant:      No, they didn't explain.

Member:So far as you know this document could be made by anybody that your parents were able to have make it?

Response:In Baghdad my uncle he prepare these documents and send to Jordan.  He went to Jordan, yes and from Jordan he sent fax to my solicitor.

Towards the end of the hearing the member then said:

It would seem to me that you do not have authentic documentation in support of your identity as an Iraqi international.  If you say that you are wanted by the Iraqi government as a deserter from conscription it would be most unlikely that they would provide you with official documentation such as the identification document you have presented today.  Particularly, identification card is very unlikely to be issued to someone who is not personally present.  I feel that it is extremely unlikely that they would present a document to you that is predated by a period of at least a year.  The presentation of that document is just not consistent with your claims to be an Iraqi national who has illegally departed their country as a deserter. 

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For those reasons I do not believe that you are giving credible claims of being an Iraqi national, credible claims for refugee status as escaping the conditions of Iraq as you have alleged.  That is all I have to say so now please respond.  Response:  Are you not aware of the condition of Iraq after the Gulf crisis.  The situation there is very, very bad.  Everything is done by bribery.  I am not the first one or the last one.  Many Iraqi they go from Iraq and Syria and other countries and they send photos to their palace and they are brave.  They prepare documents for them because the situation is very bad there and the cost of living very, very high and any person offer him bribery he would not refuse.  He would pick.  I went to South Africa.

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If you don't believe me I would like to ask a chance to get more paper of identity.  If you ask me about another countries I don't know nothing about them.  Ask me about Iraq that's my country.  I know all about it. 

The member then said:

With respect to your request for more time to get documents my answer is no.  I have said that you will be given three working days in which you wish, if you have any documents or submissions which you wish to provide, they must be at the Tribunal no later than 4 pm. 

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From my point of view the issue of your identity has been with you ever since the Department of Immigration gave notice of their questions about your identity so if you had intended to get more documents then you have had that time until now.  I consider the time provided to date to be more than sufficient.

It is against that evidence that the contention is advanced that the Tribunal acted unfairly in some way or did not act according to substantial justice. One must also bear in mind the provisions of section 476(2) of the Act which provide that a breach of the rules of natural justice in connection with the making of a decision is not a ground upon which application may be made to the court. That provision, of course, qualifies any effect which must be given to section 420(2)(b), as is made clear by the judgment of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 70 FCR 300.

It appears to me that one can conclude that the Tribunal Member, when faced with the two applications for additional time, was entitled to have regard to the fact that the Applicant had been well aware, at least since January, of the concerns which the Department had about his identity.  Indeed those concerns had prompted him to procure the document which the Tribunal rejected as lacking in authenticity.  Nothing specific was put to the Tribunal by the Applicant or on his behalf as to what steps he proposed to take or how long those steps might take or what the nature was of the documents which he sought to obtain.

Indeed the only written request for further time sought no more than a few days to obtain further material. When the matter was first fixed for hearing the Applicant's representative sought an alternative hearing date apparently because the first day was not convenient.  There was no suggestion at that stage that there was any need to obtain further documents.

In all of the circumstances having regard to the duty of the Tribunal not only to act fairly but also to resolve the matter quickly I do not consider that there was any failure on the part of the Tribunal, in reviewing the decision of the Minister's delegate, to act according to substantial justice on the merits of the case.  It follows that the ground relied upon has not been made out.  Accordingly, in my view, the application should be dismissed with costs.

I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated:             26 March 1998

Solicitor for the Applicant:	John Sarroff & Company
Counsel for the Respondent:	Ms E.A. Wilkins
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 March 1998
Date of Judgment:	26 March 1998