Beniamin, Wilson Samsalon v Minister for Immigration and Multicultural Affairs

[1997] FCA 953

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 385  of   1997

BETWEEN:	WILSON SAMSALON BENIAMIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	17 SEPTEMBER 1997
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

1. The applicant pay the 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	NG 385 of 1997

BETWEEN:	WILSON SAMSALON BENIAMIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	17 SEPTEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application under s 476 of the Migration Act 1958 (“the Act”) to review a decision of the Refugee Review Tribunal (“the Tribunal”).

The applicant is a citizen of Iraq.  He left that country on 23 January 1993 and went to Jordan.  There he lodged an application for refugee status with the United Nations High Commissioner for Refugees (“UNHCR”) and an application to migrate to Australia on refugee/humanitarian grounds with the Australian Embassy.  Both applications were unsuccessful.  The documents relating to his application to the Australian Embassy have been destroyed.  A report on the UNHCR decision indicates that he was interviewed and his application was rejected on 13 May 1993.

On 11 November 1993 the applicant travelled to Thailand.  Shortly after arriving there he lodged a written application with UNHCR and he was interviewed on 17 January 1994.  This application was rejected.  On 17 June 1994 the applicant applied for an Australian visa in Bangkok. He was interviewed by an officer from the Australian Embassy.  His application was refused.

The applicant lodged a second application with the Australian Embassy in Bangkok on 26 April 1995.  He provided a statement from his aunt in Australia, and was interviewed on 20 June 1995.  This application was also refused.

On 15 November 1996 the applicant arrived in Australia when he presented an Australian passport that had been issued to someone else and was taken into detention where he remains.  He applied for a protection visa on 10 January 1997.  The applicant was interviewed by an officer from the Department of Immigration and Multicultural Affairs on 28 January 1997, and further information was also obtained from him by telephone on 5 March 1997.  The respondent’s delegate rejected this application on 7 March 1997.  In his reasons for decision the delegate referred to inconsistencies in different versions of events given by the applicant in his several applications and interviews.  The delegate did not find the applicant a credible witness.

On 11 March 1997 the applicant applied to the Tribunal for review of the delegate’s decision.  The Tribunal affirmed the delegate’s decision on 28 April 1997.  Since this proceeding involves a challenge to the procedures adopted by the Tribunal, it is necessary to set out the steps taken in the conduct of its review.

In his application for review the applicant stated that he was being assisted by a solicitor, Rodney C Van Houten.  On 12 March 1997 the Tribunal’s Deputy Registrar wrote to the applicant asking him to forward any documents or written arguments that he wished the Tribunal to consider.  On 20 March 1997 Mr Van Houten faxed the Deputy Registrar “further information” on behalf of his client.

The Deputy Registrar wrote to the applicant on 24 March 1997 indicating that the Tribunal was not prepared to make a favourable decision “on the papers”, and that a hearing of the application had been fixed for 1 April 1997.  The Deputy Registrar informed the applicant that he had the right to give oral evidence and also notified him that:

“You may also name any person you would like to give evidence to the Tribunal about your case. If you do this, you must also complete on the reverse side of the enclosed form a written statement outlining the evidence which the witness intends to give.  The Tribunal will consider this statement but it does not have to take evidence from any of the witnesses named by you.”

On 25 March 1997 the applicant gave the Tribunal written notice that he wanted it to obtain oral evidence from two named persons.  He did not indicate on the back of the form the nature of the evidence that he expected each witness to provide.  However, he did indicate on that same form in the spaces provided that he required an interpreter, that his language was “Assyrian”, and that his dialect was “Arabic”.  On 26 March 1997 Mr Van Houten notified the Tribunal of the names of another four persons the applicant wanted to give evidence on his behalf.

The Tribunal held a hearing on 1 April 1997.  There is a dispute between the parties about what happened at the hearing.  A transcript is not available because no tape recording of the hearing can be found.

In its statement dated 28 April 1997, the Tribunal describes the course of the hearing this way:

“Mr Beniamin attended a hearing at the Tribunal on 1 April 1997.  He said that he had not spoken to his family in Iraq since he left the country in January 1993.  I asked him for more information about the sale of his home and the confiscation of his business in Iraq.  He said that he had sold his home after his problems occurred in 1992 so that he could get a passport and leave Iraq.  I also asked Mr Beniamin what had happened to his business.  He said that the business was seized after his problems occurred.  However, he was unable to give any details of the circumstances of the seizure of his business nor could he recall precisely when it was seized.  He said that the business stopped operating before he left Iraq, but also claimed that he learned it was seized by the government from his aunt in Australia who contacted his family in Iraq.  When I suggested that this appeared to indicate that it had been seized after he left Iraq, Mr Beniamin said that he did not know.

I asked Mr Beniamin what work he had done in Jordan.  He initially replied that he had never worked in Jordan.  However, when I reminded him that he had told UNHCR that he had worked there, he said that after he arrived in Jordan an acquaintance had found him a job in a clothing store and that he had worked there for three months.

I advised Mr Beniamin that on the information he had provided prior to the hearing I did not believe most of the claims that he had made.  I pointed out that there are serious contradictions in the evidence which he had provided to UNHCR and to the Australian Department of Immigration in Thailand and in Australia and I also advised him that I found his ability to obtain a letter authorising his wife’s departure from Iraq in March 1993 a strong indication that neither he nor his wife were of interest to the authorities at the time as it was my understanding that strict security measures operated in Iraq at the time.

Mr Beniamin said that he had been afraid to tell his story to UNHCR in Jordan because all of the staff were Arab and he believed that they were sympathetic to Iraq.  He added that the UNHCR interpreter who assisted him in Thailand was a Palestinian and probably did not interpret his claims correctly.  I pointed out that the UNHCR report on his case indicated that he had also provided a written statement of his claims, which also contradicted information provided at other times.  Mr Beniamin said that he did not remember whether he had written this statement.  He said that he had been under considerable stress since leaving Iraq and could not remember everything.  With regard to the information he had provided to the Australian Embassy in Thailand, Mr Beniamin said that his interviews had been conducted without the assistance of an interpreter and he had therefore not been able to put his claims adequately.  I noted that from the comments he had made in English at the beginning of the hearing it appeared that he had some understanding of English.  I also noted that the claims he had made to the Embassy were reasonably detailed, which appeared to indicated [sic] that he had been able to communicate reasonably well.  Mr Beniamin said that the claims that he had made since arriving in Australia were all true and asked that his earlier statements be ignored.  I explained that this was not possible.

At the beginning of the hearing I noted that the Tribunal had not been advised of the evidence to be provided by Mr Beniamin’s witness and asked Mr Van Houten what evidence the witnesses would be providing and how long he anticipated this would take.  Mr Van Houten said that he thought it would take between two and three hours.  He said that Mr Beniamin’s aunt had telephone and bank records which proved that she had been in contact with Mr Beniamin in Jordan and his family in Iraq and that she had assisted him financially.  Beyond this, he had not had time to discuss the evidence they would be providing with Mr Beniamin or the witnesses.  After taking Mr Beniamin’s evidence it became apparent that there was insufficient time to take evidence from the four witnesses.  I offered Mr Van Houten an opportunity to discuss the evidence which witnesses proposed to give so that I could decide whether this evidence was relevant and how it should best be obtained.  Mr Van Houten said that he would prefer to take their evidence himself and provide written statements to the Tribunal [as] the hearing had lasted longer than he had anticipated and he had to return to his office.  He said that it would take no more than a few days to obtain this information.  I agreed to this and also agreed to forward copies of documents relating to Mr Beniamin’s claims to Mr Van Houten.”

In this Court the applicant gave evidence, by affidavit and orally, about the hearing before the Tribunal.  He said that the hearing was very brief and lasted only about fifteen minutes; that his native language is Assyrian and the interpreter at the hearing spoke Lebanese Arabic; that he could not understand a lot of what the interpreter said; that his uncle Bela Kalosho who “was not one of my witnesses” was directed to leave the hearing room and he wanted him to stay to give him moral support; and that he was not given a chance to speak about his case.  Evidence of the applicant’s opinions about the Tribunal member’s conduct and attitude was rejected: Goktas v Government Insurance Office of NSW (1993) 31 NSWLR 684. I permitted the affidavits made by the applicant to be used, notwithstanding that they were not certified in accordance with O14 r2(3) of the Federal Court Rules.  His counsel assured me that they had been read to him and he seemed to understand them.  The applicant was examined with the aid of an interpreter in the Assyrian language.  His counsel asked a series of leading questions about whether the Tribunal had asked him about certain topics.  The applicant answered some of these questions in the negative, and to others he answered that he did not remember.  In cross-examination, when he was asked whether he did not answer any question at the Tribunal hearing because he did not understand it, he said that he could not remember.

The solicitor for the respondent tendered a record of the hearing which was apparently completed on the day of the hearing by an officer assisting the Tribunal.  This shows the hearing commenced at 1.45pm and finished at 3.15pm.  It also lists the persons taking part in the hearing as the applicant, Mr Van Houten, the interpreter, four witnesses and a friend “for moral support”.  The four witnesses were the two persons nominated in the applicant’s request of 25 March 1997 and two of the four persons mentioned in Mr Van Houten’s letter of 26 March 1997.

I am quite satisfied that the Tribunal’s statement of 28 April 1997 accurately records the evidence of the applicant communicated through the interpreter and that the hearing lasted one and a half hours.  There is no evidence before the Court that the applicant indicated in any way at the hearing that he did not understand the interpreter or that he personally wished to give any further evidence.  His uncle Bela Kalosho was, in fact, shown in the form completed on 25 March 1997 as one of the witnesses from whom he wanted the Tribunal to take oral evidence.  Nor is there any evidence upon which I could make any adverse finding about the demeanour of the Tribunal member.

On 2 April 1997 a Tribunal officer sent Mr Van Houten copies of the UNHCR reports, of the applications lodged with the Australian Embassy in Bangkok, and of the reasons for the decisions refusing those applications, together with a tape recording of the interview on 28 January 1997 and notes of the telephone conversation on 5 March 1997.  This material was apparently collected by Mr Van Houten from his post office box on 10 April 1997.

Mr Van Houten faxed the Tribunal on 16 April 1997 a letter requesting “another two weeks” to provide further written submissions.  He said that he had attended the Villawood Detention Centre for a conference with his client “to obtain further instructions in relation to his application [sic] in Jordan and Thailand”, but that the applicant was unwell and unable to complete the conference.  Mr Van Houten also said that the applicant’s aunt (who was one of the nominated witnesses) had requested a conference “early next week to provide us with relevant information for the Tribunal’s consideration”.  On 16 April 1997 the Tribunal’s Deputy Registrar notified Mr Van Houten that any additional submissions or additional evidence must be forwarded by 18 April 1997.

On 18 April 1997 Mr Van Houten wrote to the Tribunal.  In that letter he said:

“We note that any extension of time has been declined by the Tribunal in your letter dated 16 April 1997 in our respectful submission.  This puts our client at a severe disadvantage particularly, since on the 16th April 1997, he was advised that his mother and sister who are currently residing in Jordan have been approved to migrate to Australia.

Our client’s claims to be a Refugee involved the treatment of both his mother and sister following our client’s escape from Iraq.  Naturally, our client’s mother and sister’s application to migrate to Australia becomes relevant documentation to our client’s claim and to determine his application without been [sic] given a chance to obtain and submit his mother’s and sister’s file to the Tribunal, would be a fundamental breach of natural justice.”

Mr Van Houten then went on to make submissions about what he described as the applicant’s “versions that defer [sic]” in the several applications in Jordan and Thailand.  He also enclosed a statutory declaration of the applicant’s aunt made on 16 May 1995.  (This would appear to be the same document that had earlier been forwarded in connexion with the second visa application in Bangkok.)

When the Tribunal gave its decision on 28 April 1997, it said:

“In reaching my decision I have considered Mr Van Houten’s submissions that Mr Beniamin has not been given an adequate opportunity to put his case.  It is now more than three months since Mr Beniamin first applied for a protection visa and over two weeks since the Tribunal hearing of his case.  At the hearing I advised Mr Beniamin that I had serious doubts about his credibility because of the serious discrepancies in the evidence he had provided to UNHCR and the Department.  The day after the hearing I sent Mr Van Houten copies of the reports from UNHCR and the Australian Embassy in Thailand which set out the claims Mr Beniamin had previously made.  The substance of these reports has already been discussed with Mr Beniamin at the hearing.  With regard to the evidence from Mr Beniamin’s witnesses, I was willing to take oral evidence from these witnesses at the hearing provided its relevance to Mr Beniamin’s case was established.  However, Mr Van Houten suggested, and I agreed that it would be better if he interviewed the witnesses and provided written statements of their evidence.  I believe that Mr Beniamin has had an adequate opportunity to provide evidence or submissions in support of his application.

I have also considered Mr Van Houten’s submission that the Tribunal should delay making a decision on Mr Beniamin’s case until the files relating to successful migration applications by his mother and sister in Jordan are obtained.  Mr Beniamin and his family in Australia have been in contact with his family in Iraq and Jordan and have had ample opportunity to provide the Tribunal with any information or evidence regarding their situation relevant to Mr Beniamin’s case.  I do not think that the delay sought could add anything of substance to Mr Beniamin’s case (cf Xiang Sheng Li v RRT & Anor, unreported, FCA, Sackville J 23 August 1996, p. 19).”

The above passage comes at the end of the Tribunal’s statement, which comprises just over fourteen single-spaced pages of text.  On the face of that statement the Tribunal carefully addresses the claims made by the applicant, which need not be repeated.  In particular, the Tribunal did not accept that the applicant “was seriously harassed, detained or tortured by the Iraqi authorities”.

Counsel for the applicant challenges several of the findings of fact by the Tribunal. This is, of course, not a basis upon which the Tribunal’s decision may be reversed in this Court. The ground specified in s 476(1)(g) of the Act is invoked in terms, but counsel does not identify any “particular matter” as required by s 476(4)(a). I reject as completely unarguable the submission that the Tribunal never addressed the suggested core issue: was the applicant tortured?

The applicant also alleges actual bias.  This is said to have been manifested by the Tribunal’s “putting undue emphasis on contradictions in previous material instead of having regard to the applicant in person”.  This would appear to be another way of attacking the fact-finding by the Tribunal.  It is, of course, for the Tribunal to weigh the evidence before it.  Even a perverse finding would not, by itself, betoken actual bias.  The authorities on actual bias have recently been collected and explained in the present context by Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs (unreported, 18 October 1996) at pp 5-11.  Counsel is quite unable to point to any evidence from which the Court could possibly conclude that the Tribunal member was actually biased against the applicant.  I should emphasize that there is not a shred of evidence before the Court that would suggest the slightest hint of impropriety in the Tribunal member’s deportment at the hearing on 1 April 1997, throughout which a solicitor representing the applicant was present.

The main thrust of the applicant’s case rests upon the contention that he did not receive a “proper” hearing before the Tribunal. The applicant’s counsel does not identify any specific procedure that was required by the Act or the Migration Regulations to be observed. Instead, he submits that the review was not “fair” and “just” as required by s 420(1) of the Act and the Tribunal did not “act according to substantial justice and the merits of the case” as required by s 420(2)(b) of the Act. Thus, it is said, the applicant can rely on the ground specified in either par (a) or par (e) of s 476(1) of the Act. I do not think that s 420 can be availed of in this way, but there is support for this approach in the majority judgments in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621.

Specifically, it is submitted that the Tribunal did not take evidence, that it excluded the applicant’s uncle from the hearing room, that it did not allow adequate interpreting, that it did not listen to what the applicant wanted to say, and that it did not grant a sufficient adjournment.  I regret to say that I found it difficult to link these bald submissions with the evidence before the Court.  They are, in my view, extravagant.

The Tribunal plainly did take evidence from the applicant. It is unfortunate that a tape recording of the hearing cannot be found. There is no statutory requirement that such evidence be recorded when it is taken by the Tribunal: cf s 428(4) of the Act. The failure to tape such evidence might in some circumstances make it difficult for an adviser who was subsequently retained, but in the instant case Mr Van Houten was present throughout the hearing. So far as the other proposed witnesses are concerned, the Tribunal had regard to the applicant’s wishes as required by s 426(3) of the Act. But the Tribunal was not required to obtain evidence from those persons. The nature of their evidence was not disclosed and, in any event, Mr Van Houten volunteered to provide it in writing. As I have already mentioned, there is nothing whatsoever before the Court to suggest that the Tribunal should have been aware that the applicant himself wished to give any further evidence or that communication with him through the interpreter was unsatisfactory. So far as the applicant’s uncle is concerned, he had been named as a prospective witness. An order for witnesses to leave the hearing room is quite unexceptionable. Such a person may be directed to remain outside until called to give evidence so as not to be able to tailor his evidence to what has gone before.

I have set out earlier what the Tribunal had to say about Mr Van Houten’s application to adjourn its review. The material containing the applicant’s differing versions was, of course, also referred to in the delegate’s reasons for decision on 7 March 1997. The importance of that material should have been apparent well before the hearing on 1 April 1997, and the applicant will have been in a position to give instructions about the inconsistencies referred to by the delegate prior to the application for review being lodged. Mr Van Houten gave no indication what relevant information about the treatment of the applicant’s mother and sister would emerge from their Departmental files. The Tribunal has explained quite rationally why it exercised its discretion against further adourning the review. Its refusal to do so is conducive to the objective spelt out in s 420(1) of the Act.

The application is dismissed with costs.

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated:            17 September 1997

Counsel for the applicant:	Phillip Segal (14 August 1997) and M S Doyle (22 August 1997)
Solicitor for the respondent:	Mr G J Peek of the Australian Government Solicitor
Dates of hearing:	14, 22 August 1997
Date of judgment:	17 September 1997