Kfouri, M.G. v The Minister for Immigration, Local Government & Ethnic Affairs

[1994] FCA 447

94-7 99

JUDGMENT No. , .J , . , . ,,,-.,,

OF	)
)
) No. WAG 155 of 1993

B E T W E E N :

-

Applicant

- and -

Respondent

CQLUm:	Olney J
W :	Melbourne
Pate:	8 July 1994

-

l

application filed on 22 December 1993 the applicant sought' -

a review of the decision of the respondent to refuse him a permanent entry permit pursuant to s 6 ( 2 ) of the Migration Act 1958.

The grounds upon which relief was sought included allegations that the applicant had been denied natural justice and that the making of the decision was an improper exercise of power.

applicant which had taken place on 9 July 1992. As between

Quite extensive particulars of the asserted grounds are pleaded in the application.

The delegate of the respondent who made the decision in question had relied upon a transcript of an interview between a departmental officer, Mr Leonard Keith Leerdam, and the

the applicant and the interviewer, the interview had been conducted through an interpreter, a Mrs W. Felear. The applicant's wife, Mrs Jacqueline Kfouri and their solicitor Mr Lindsay were also present.

The transcript upon which the delegate relied suggests that the interview was not an orderly exchange of questions and answers. Initially, Mre Kfouri was interviewed and this was done for the most part in English with limited assistance from the interpreter. When the interviewer came to interview the applicant it appears that on occasions Mrs Kf0uri answered some of the questions for him and on some occasions the interpreter volunteered information of her own.

Much of the interview concerned the applicant's involvement with the South Lebanese Army and in particular the applicant was questioned concerning his particular duties and activities. In this context the following exchanges are recorded (at pp 26-7 of the transcript):

Q115 And t h i s happened i n t h e - you were i n t h e hrmy f o r

two years, were not you?

A INTERPRETER: Y e s

Q116 And so thi . w a s your a c t i v i t y over t h a t t ~ m e , t h i s

w a s t y p i c a l of your ac t iv i t iem?

A INTtRPRETER: The point he wanted t o make was he

d i d it because he had t o do it.

Q117	Let u s expand on t h a t then.
A	INTERPRETER:  I had t o follow orderm. H e j u s t
sa id ,  "I had t o follow order. from t h e people
higher than nu".
Q118	And  i f he d i d no t t o l l & orders?
A	INTERPRETER:  I am compelled to listen. our
aim is the same.  He has, ho has tortured quite a
few Syrians before he went to Israel.
A	HRS KPOURI:  Before the Israel Army came in.
A	INTERPRETSR:  Before the Israel Army took hold,
yes.  nofore tho Israel Army moved into ...
A	HRS MOURI:  I think we explain everything in the
paper if you road it.

In the delegatele reasons for decision reference is made to the interview as to which the delegate said:

An asmomsaunt againmt the bases outlined above in respect of

the character requirement must therefore be made on the ovidenco provided by the applicant on his activities over the yaars. I noto in particular the information given by Nr Kfouri at interview on 9 July 1992 (transcript incorrectly givos tho year as 1993) with regard to his service with the south Lebanese Army which indicates that Wr Xfouri:

was a full time member of the South Lebanese Army, as a
commander ;

participated in tho capture and imprisonment of "anybody involvod in doalings against Israel", he was against Her Belah a party against the Israelis;

interrogatod people but not "without reason";

on one occasion was involved Ln the demolition of seven housos with bombs in retaliation for the k~lling of an Israeli captain;

was involvod in the dotontion of people appearing on lists, origin unclear, and assault of those peoplo who resimtod - Nr Kfouri used as an analogy the Rodney King incident in the US but claimed that the people he detained wore actually criminals because of their

activitiem against tho Israeli Army;

has tortured quit0 a fow Syrians before the Israeli Army

movod into Lobanon;

had the choice of resigning from the South Lebanese Army

but wanted to advance in the Army;

followod ordorm "because he had to do it";

is afraid that if he returns to Lobanon that someone will take rovongo for his activitios while with the South Lebanoao Army. "Tho Syrian informants would know about

re and they would have a11 the information on me.	I'm-
known by 80s Belah m d known about the activities".

I rogud tho activities of ilr Kfouri as doscribsd by him at intorview on 9 July 1992 as being at the very least anti-mocial b.h.viour, and consider it roasonablo to assumo that the activitiu may at timos have boon criminal in nature. I noto

that ilr Kfouri r o q u d d the South Lebanese h y as a propor

anay enforcing law and order. However I cannot accept that retaliatory actions, use of unnecessarv force to detain, and - -

torture u e acceptable activities for any orgmrmation enforcing law and order. Ur Kfouri must accept remponsibility for his -awn actions and it is no excuse to &aim that he wan taking orders. By his own account hie brothers who also served in the South Lebanese Army were not involved in the same way that he was and his continued involvament in the Army was by choice.

In paragraph 3 of the application the applicant claims as one

of the grounds upon which he seeks relief:

(iii) The mrking of the decision was an improper exercise of the power conferred by the Migration Act in that the respondent took irrelevant considerations into account in the exercise of the power, namely:

(a)

That the applicant was a commander in the South Lebanese Army, that he was involved in the mistreatment and torture of Syrians and other opponents of the South Lebanese Army and the Israeli Army and that he used unnecessary force to detain such opponents, when such consideratione were factually erroneous and were not stated by the applicant in his interview with an officer of the respondent on 9 July 1992 but such considerations uose through errors in translation at the interview.

(b)

The suspicion that the applicant's activities as a member of the South Lebanese Army may at times have been criminal in nature when such suspicion wam without basis in fact.

These matters are addressed in paragraph 44 of the applicant's affidavit sworn on 21 December 1993 and filed in support of

the application in theee terms: 

My wife and I were interviewed by M officer of the respondent on 9 July 1992. Annexed hereto and marked with the letter "B" is a copy of the transcript of the record of interview. I wan not provided with a copy of the transcript until after the decision to refuse me permanent residency was made. There were a number of errors in the interpretation of questionm and answmrm during that interview. Firstly, I wae not a commander in the South Lebaneme Army, but a commando. Secondly, at no time did I torture or mistreat Syrians or other opponents of the South Lebanese Army and the Israeli Army. As etatad eatliar, I wan tortured by the Syrian Army before the Israeli Army moved into Lebanon. Prior to the Israeli Army entering Labmon, I was not a member of the South Lebanese Army.

Thirdly, I did not mistreat anyone who was arrested but wrmly uercisad force rmasonably necessary to apprehend people hing urestad. Thne matterm and other matters baud on incorrect translation were taken into account sn the reamonm for decision of the delegate of the respondent am contained in the record of the decision dated 25 November 1993, annexed hereto and marked with the lottor "C".

The interview held on 9 July 1992 was recorded on tape and a copy of the tape was given to the applicant after the interview. A t the commencement of the interview the interviewer said that he did not intend to get a transcript, but rather would record the questions and answers by hand. The decision to refuse him resident status was made on 25

November 1993. The application for review was filed within

28 days thereafter . It was not until 1 June 1994 that the respondent provided the applicant with a further transcript of the tape of the interview which, with some immaterial reservations, the applicant accepts to be accurate. The portion of the new transcript corresponding with the portion quoted above is as follows:

And this happened, Hr Kfouri, while you were in the army for two years7

And this was your activity over that time.	This wam typical
of your activity, maid Loonard.
He did it becaumo he had to do it, you know, said the

interprotor.

Alright let's expand on that then, maid Leonard.

I just had to follow order. from my meniorm.

And if you didn't follow order.? amked Leonard.

I'm compelled to do thim bocause w mharo the same objrctive. I had suffered a great lot from the Syrians before the Imraeli

Army c m in.

I think WO havo uplained ovorything on papor, maid Jacklyn.

The respondent accepts that in view of the incorrect -. interpretation appearing in the first transcript it should concede the relief sought and an order will be made to that effect by consent. But the respondent does not concede that the applicant should have the costs of the application.

The basis of the respondent's resistance to what would be the normal course, namely an order for costs following the event, is set out in an affidavit of Mr Leerdam (the interviewer) sworn and filed on 5 July 1994. The thrust of the affidavit is that the applicant and his wife specifically requested that Mrs Felear be the interpreter and that any errors in interpretation should not be held against the respondent.

This is a very difficult proposition for the respondent to maintain. In his affidavit Leerdam says (at paragraphs 6 and

7 ) :

6.     At paragraph 3 of this affidavit, I mtated that I had a very npecific recollection of Xrs Felear being the choice of the Kfouris at the interview. This was becaume I was generally dinnatimfied with Xrn Felear'n performance at the interview. There were occasion8 when Xrm Felear, unprampted by anything the Kfourim maid, volunteered information about the Kfourim clearly exceeding her role

an an interpreter. ...

7.     From limtening to a tape recording of the interview, it in oven more apparent that Xrs Felear interjected many tiws, making nubminmions on behalf of the Xfouris, at times expanding m d purporting to clarify answers that they had made, unprompted by any quemtion from me. At one point, nhe even purported to clarify a statement made by the solicitor Wt Lindnay ...

The respondent and those to whom his powers are delegated have difficult and responsible functions to fulfil under the

Migration A c t . They often, probably more frequently than

not, have to deal with people whose first language is not English or who speak no English at all. Apart from the

duties cast upon them by the statute, the provisions of the Administrative Decisions (Judicial Review) Act operate so as to impose a heavy responsibility to see that the basis upon which they exercise their decision-making functions is correct. In this case the transcript upon which the decisionmaker relied was clearly unsatisfactory. The respondent's officers were in possession of a tape recording capable of being correctly interpreted and transcribed. The applicant did not see that transcript until after the decision of 25 November 1993 was made. From the outset of the proceedings the applicant has disputed the accuracy of the transcript in respect of at least one of the critical facts which influenced the decision-maker. And when resort was had to the tape, it was found that the initial transcript was incorrect.

If, as he now says, the interviewer had some reservations about the standard of the interpreter's work, it would have been well for that fact to have been made known to the

decision-maker before, rather than after, the decision was made.

In my opinion there is nothing in the applicant's conduct

either before or after the institution of these proceedings which justifies a departure from the normal rule that costs should follow the event. The applicant has been entirely successful, albeit by consent, and should have his costs.

The Court therefore orders:

1.	By consent, that the decision of the respondent or his delegate to refuse an application by the applicant for a permanent entry permit be set aside and that matters to which the decision relates be referred to the respondent for further consideration according to law.
2.	That the respondent pay the applicant's costs of the

proceeding including any reserved costs.

I certify that this and the

preceding 7 pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Olney

Associate: K&-W

Dated:  8 July 1994.

mmd:	5 July 1994
E!hca:	Perth (video link to Melbourne)

J u t m M t :	8 July 1994 (in Melbourne)
-:

Mr H. Christie (instructed by Director of Legal Aid, WA) appeared for the applicant.

Mr P. Macliver (instructed by Australian Government Solicitor)

appeared for the respondent.