Son, Sook Rye (aka Hui Ying Zhou) v Minister for Immigration and Multicultural Affairs
[1998] FCA 1306
•19 OCTOBER 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION - refugee - refusal of protection visa - whether Refugee Review Tribunal failed to provide effective procedures – whether applicant given enough notice of hearing and given opportunity to respond to interpreter’s opinion - whether fair and just – whether duty of decision maker to enquire further
Migration Act 1958 (Cth) s 420 (1) (a); s 424, ss 425 (1) (a), (2); 426 (1), (2), (3); 427 (6) (a); 476 (1) (a), (e), (g); 476 (4)
Migration Regulations 1994 rr 4.41, 5.02, 5.03
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621, applied
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, applied
Budiyal v Minister for Immigration and Multicultural Affairs (Unreported, 20 March 1998, Tamberlin J), cited
Asrat v Minister for Immigration and Ethnic Affairs (Unreported, 23 August 1996, O’Loughlin J), cited
Minister for Immigration and Ethnic Affairs & Anor v Singh (1997) 144 ALR 284, cited
Crock Immigration and Refugee Law in Australia (1998), quote
SOOK RYE SON (aka HUI YING ZHOU) v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NG 630 of 1998
HELY J
SYDNEY
19 OCTOBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 630 of 1998
BETWEEN:
SOOK RYE SON (aka HUI YING ZHOU)
ApplicantAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RespondentJUDGE:
HELY J
DATE OF ORDER:
19 OCTOBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application be dismissed.
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 630 of 1998
BETWEEN:
SOOK RYE SON (aka HUI YING ZHOU)
ApplicantAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent
JUDGE:
HELY J
DATE:
19 OCTOBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HELY J:
The applicant arrived in Australia on 23 October 1997 carrying a passport apparently issued by the Republic of South Korea in the name of Sook Rye Son, born on 2 March 1969.
The applicant was granted a three months visitor entry upon arrival in Australia. She applied for and was granted an extension to her visitor visa on 19 January 1998. This entry permit was valid until 26 March 1998. An application for further extension of her visa was refused on 1 April 1998.
On 30 March 1998, (whilst the applicant was in detention in Villawood) application was made to the Department of Immigration & Multicultural Affairs for a protection visa.
The applicant claimed that:
She is Ms Hui Ying Zhou, born on 9 October 1969 in North Korea.
She is a national of North Korea.
She left North Korea illegally.
She arrived in Australia using a falsely obtained South Korean passport in the name of Sook Rye Son.
If forcibly returned to North Korea she would suffer persecution by reason of her escape, which would be perceived by the authorities in North Korea to be an act of negative political comment, with the result that she will be persecuted for her perceived political opinion.
She is of ethnic Chinese origin. Her father is Chinese and she speaks the language fluently. Ms Zhou's race will make her escape be seen as an act of treason and she would receive worse punishment than non-Chinese.
On 29 April 1998 the application for a protection visa was refused.
On 5 May 1998 application for review of that decision was made to the Refugee Review Tribunal. On 21 May 1998 a hearing was held before the Tribunal member, Mr L Hardy. Because of a breakdown in communications, the applicant did not learn of the proposed hearing until the evening before. I will return to the details of that breakdown later in these reasons.
On 3 June 1998 the Refugee Review Tribunal ("RRT") found that the applicant is not a refugee, and affirmed the decision not to grant a protection visa. The Tribunal:
Did not believe the applicant's claims that she is a national of North Korea.
Did not believe the applicant's account that she had escaped from North Korea to South Korea.
Was satisfied that the applicant is a national of the Republic of Korea, ie South Korea.
Was satisfied that in all probability the passport under which the applicant entered Australia was not a fake.
Did not believe that the South Korean authorities would force the applicant back to North Korea, since she is not North Korean.
Could find no evidence indicative of a real chance of the applicant facing persecution in South Korea for reasons of "race".
On 24 June 1998 application was made for an order of review of that decision. The application lists a number of grounds for review. For a time, the applicant was represented by solicitors. However, on 2 October 1998 they gave notice of ceasing to act, and that George Lombard is now the applicant's migration agent.
On 6 October 1998 a letter was received in my chambers from George Lombard Consultancy Pty Ltd, dated 5 October 1998, enclosing a document styled Appellant's Outline of Submissions. Mr Lombard was not present in Court when the matter was called on for hearing, and the applicant appeared for herself, with the assistance of an interpreter arranged by the Court. No application was made for an adjournment and the applicant indicated that she wished to proceed.
The respondent's counsel submitted a written response to the applicant's outline. This was handed to the applicant in Court. As Mr Lombard had not seen the document, and as he appeared in Court at the tail end of the proceedings, I reserved my decision and gave to the applicant leave to submit a written reply to the respondent's submissions. That reply was furnished by Mr Lombard, under cover of a letter of 10 October 1998. I have treated the application as confined to matters which were the subject of submission by Mr Lombard.
The applicant submitted that the procedures adopted by the RRT in her case failed to comply with the requirements of s 420 of the Migration Act 1958 (Cth) ("the Act"), thus enlivening the jurisdiction of the Court under s 476(1)(a) of the Act. The submissions originally lodged identified three alleged deficiencies in the procedures adopted by the RRT:
Denial of the assistance of the applicant's migration agent.
The late notification of the hearing.
The use of the interpreter to obtain information as to dialect without affording the applicant the opportunity to call evidence in response.
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 and Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 are decisions which are binding on me. These cases decide that s 420 does establish procedures to which s 476(1)(a) applies, and the Court may set aside a decision based on a failure to act according to the substantial justice and the merits of the case. Accordingly the questions for determination are whether the RRT failed to provide a mechanism for review that was fair and just, or failed to act according to the substantial justice and merits of the case, or otherwise failed to observe procedures that were required by the Act or the Regulations to be observed in connection with the making of the decision.
Denial of the assistance of the migration agent
The late notification of the hearing
It is convenient to deal with these grounds together.
The Application for Review described the applicant as ZHOU, Hui Ying, and gave as her home address the Immigration Detention Centre, Villawood. The form contained the statement: "We will send all documents to you at this address unless otherwise advised". The response to Q 11 disclosed that a migration agent, Marion Le of Belconnen ACT, was an adviser authorised to act for the applicant in relation to the application. The form contained a statement to the effect that copies of correspondence would be sent by the Tribunal to the adviser. The section of the form containing the marginal note "address for service" was left blank.
The RRT file (Ex 'AM-2', p 28) contains a file note of a conversation between a departmental officer, Ivan Yu and Marion Le on 14 May 1998 in which arrangements were made for provision to her of copies of documents from the files relating to the applicant. The note also records:
"She also confirms the hearing scheduled on 21.5.98, however, she may not be able to attend."
A letter dated 15 May 1998 (Ex 'AM-2', p 33) was sent addressed to Miss Hui Ying Zhou at the Villawood Detention Centre notifying her of a hearing on 21 May 1998, copied to the Indo-Chinese Refugee Association in Belconnen ACT. The file records a note of a call from the Villawood Refugee Centre on 20 May 1998 to the effect that they had nobody listed by the name of Miss Hui Ying Zhou. The centre was informed of the alias listed as SON, Sook Rye by which name the applicant was apparently registered at the centre.
The Tribunal on page 3 of its reasons for decision states:
"The Tribunal's letter to the applicant, advising her of the hearing, was addressed to her in her Chinese name (the alias shown above), as was the copy sent to the adviser. The applicant's Chinese name was used by the Tribunal's case management team because she applied for review by the Tribunal under that name and only that name. However, when the letter arrived at the detention centre, the staff there could not find anyone registered there under that name and duly returned the letter to the Tribunal. The Tribunal is informed by its case management team that when the staff at the detention centre are unable to locate an RRT addressee, they usually contact the Tribunal to seek clarification. For whatever reason, that appears not to have occurred in this instance. Nevertheless, the Tribunal clarified the matter with the detention centre 'at the eleventh hour' and the Applicant was escorted to the appointed hearing under the name shown in her passport. All the while, it appears from the Applicant's evidence, which is not negated by the adviser, that she did not learn about the scheduling of a hearing from her adviser until the very night before. This is notwithstanding that the adviser, having both of the Applicant's names, had been advised of the hearing date a whole week before. It may be that the adviser was also trying to locate the Applicant under her Chinese name."
The transcript of the proceedings before the Tribunal (Exhibit 'AM-3' p 3-5) records that the applicant was first "told the hearing was on" by an immigration officer at about 8 pm on 20 May 1998. According to the applicant, she had received no information to that effect from her adviser, Marion Le.
Notwithstanding the late notice, and the absence of the adviser, the Tribunal member proceeded with the hearing. He told the applicant (p 2) that he would not be making a decision during the hearing, and that if there were any claims which the applicant had which were not raised during the course of discussion, she would have an opportunity to raise them later (p 3). He was not prepared to shift hearing dates to suit the availability of the adviser (p 5). At the conclusion of the hearing (p 38) the Tribunal gave the applicant until 29 May 1998 to submit to it any documentary proof with respect to her claimed North Korean nationality (p 37-8). A copy of the tapes of the hearing was given to the applicant on 21 May 1998 (Ex 'AM-2', p 34).
Marion Le wrote to the Tribunal on 24 May 1998. The letter stated that the applicant was unrepresented at the hearing "as I had previously advised the Tribunal I was unavailable on that day". Ms Le wanted to listen to the hearing tapes, but was unable to visit the applicant in the Detention Centre until the weekend of 30/31 May 1998. She asked that a copy of the tapes be sent directly to her. The letter listed seven respects in which it was contended there had been a failure properly to enquire into Ms Zhou's claims.
Ms Le was advised by phone of 28 May 1998 (Ex 'AM-2', p 67) that she could have the weekend to discuss the case with the applicant and that she would be given until the close of business on 2 June 1998 to fax any submissions arising. Ms Le was told that "as a matter of policy RRT is no longer able to post tapes" (Ex 'AM-2', p 95). By letter dated 28 May 1998 (Ex 'AM-2', p 95) Ms Le confirmed her awareness of the time fixed for the lodgment of any further submissions and reiterated her intention of seeing Ms Zhou at the Immigration Detention Centre on the coming weekend.
According to the Tribunal's reasons for decision (p 3) at 11.00 am on 3 June 1998, the Tribunal had not received any further submissions from the applicant or her adviser, hence it proceeded to make a decision on the basis of the materials then available.
If the RRT is not prepared to make a decision favourable to the applicant "on the papers" [s 424], it must give the applicant an opportunity to appear before it and give evidence [s 425(1)(a)]. The Tribunal must notify the applicant that she is entitled to appear before the Tribunal to give evidence, and of the effect of s 426(2) [s 426(1)]. A person appearing before the Tribunal is not entitled to be represented before the Tribunal by any other person [s 427(6)(a)]. Nor is the Tribunal required to allow any person to put oral submissions to it about the issues arising in relation to the decision under review [s 425(2)].
Section 426(2) of the Act provides that the applicant may, within seven days after being notified of her entitlement under s 426(1) to appear before the Tribunal and give evidence, give the Tribunal a written notice that the applicant wants the Tribunal to obtain oral evidence from person(s) named in the notice. The Tribunal is required to have regard to that wish, but is not required to obtain evidence from a person named in the applicant's notice [s 426(3)].
The applicant submits that it follows from s 426(2), that the applicant is entitled under s 425(1) or s 426(1) to at least seven days notice of the date on which the applicant is to be accorded a hearing. I do not agree. The subject matter of s 426(2) is the obtaining of evidence from persons other than the applicant. If that evidence is to be obtained, there is no requirement that it be obtained at the same time as the applicant's evidence is given, should she chose to take advantage of the opportunity which s 425(1) affords to her. Nor is the applicant's right to give a notice under s 426(2) spent or diminished in any way should she herself give evidence in pursuance of her s 425(1) entitlement before the expiration of the seven day period allowed by s 426(2).
Depending on the circumstances, there may be cases in which the shortness of notice makes the opportunity to appear illusory, such that the requirements of s 425(1)(a) will not be satisfied. Again, depending on the circumstances, there may be cases in which the shortness of notice demonstrates, or reflects a failure to provide fair and just procedures so as to produce a denial of substantial justice in terms of s 420. But in my opinion there is no mandatory requirement that seven days notice be given. I do not think that the decision of Tamberlin J in Budiyal v Minister for Immigration and Multicultural Affairs (NG 923 of 1997, 20 March 1998 – unreported) requires or indicates any different conclusion. That was a case in which it was found that the applicant was denied the s 425(1)(a) entitlement to a hearing, when the hearing date offered was withdrawn on notice which was otherwise than reasonable. The case concerned whether an opportunity to appear had been given when no hearing was held; it simply does not deal with the question whether an apparent hearing is vitiated by the shortness of the notice by which it was convened.
Regulation 4.39 of the Migration Regulations 1994 ("the Regulations") allows an applicant to lodge an address for service with the RRT at which documents relating to a review may be sent to the applicant. Regulation 4.41 provides for service of documents on the applicant by posting them to, or leaving them at, that address. Regulation 5.02 provides that documents may be served upon a person in immigration detention by giving the document to the person, or to another person authorised to receive documents on his or her behalf. Regulation 5.03 provides, insofar as is presently relevant, that a document is taken to be received by the applicant seven days after the date of the document.
The Regulations do not prescribe that the notification to be given to the applicant pursuant to s 426(1)(a) shall necessarily be in writing [contrast s 426(2)] nor that it shall be given in any particular time. In my view the regulations referred to are irrelevant to the determination of the present question, except that they could not sustain an argument (which neither side put) that I should approach the matter on the basis that notice of the hearing was given to the applicant on 15 May 1998, either because Regulation 50.2 was applicable and not complied with, or because the seven day period referred to in Regulation 5.03 expired after the date fixed for hearing.
Nor, in my opinion, did the shortness of notice render the opportunity to be heard illusory. The applicant was able to attend the hearing and to participate in it with the assistance of interpreters. The nature of the questions asked by the Tribunal Member were such that an adequate response could be given to them without prior preparation, or the assistance of an adviser.
That still leaves the question of whether the circumstances in which the hearing was convened and held indicates that the mechanism for review was not fair and just, or that there was a failure to act according to the substantial justice and merits of the case.
The hearing is an important part of the review process. If all that emerged was that notification of the hearing was given on the night before the day in which the hearing was due to be held, to a lady who was in custody, and who could not speak the English language, and whose adviser was located in the Australian Capital Territory, then this question might well be answered in the affirmative.
But I think that there is more to it than that:
Timely notice of the date for hearing was given to and received by the adviser.
The explanation for the adviser's failure to attend the hearing lay in her other commitments.
It was not due to any fault on the part of the RRT that notice to the applicant sent on 15 May 1998 was not received by her until 20 May 1998. The notice was addressed in the manner designated by the applicant in the Application for Review.
The hearing was only part of the decision making process, albeit an important part.
The applicant was told at the hearing that if there were claims which the applicant had which were not raised during the course of discussion, she would have the opportunity to raise them later. She was given until 29 May 1998 to submit further material. She did not seek to take advantage of this except that the adviser submitted a photograph of the applicant taken against a North Korean background under cover of her letter of 28 May 1998.
The applicant was given the tapes of the hearing with a view to the adviser listening to them on the weekend of 30/31 May 1998.
The adviser was given until 2 June 1998 to lodge further submissions, but did not take advantage of this opportunity, or complain that the time allowed was inadequate.
There is no statutory entitlement to have an adviser present at the hearing. The adviser knew that the hearing was to proceed on 21 May 1998 although she was not available. The Tribunal did not breach any procedure prescribed by the Act when it conducted the hearing in the absence of the applicant's migration agent. When account is taken of the totality of the circumstances, in my opinion a case based upon non compliance with s 420 is not made out.
I am not satisfied that matters would have proceeded in any different manner had the letter sent to the applicant on 15 May 1998 in fact been received by her. Ms Son appeared to accept herself that she was not disadvantaged by the late notification – see Transcript 6 October 1998 p 15 l 20-25.
The use made of the interpreter
The applicant puts its case in this way:
"In our submission the principal issue here is whether the interpreter, in being used in an evidently partisan fashion as a witness against the applicant, was being encouraged to act unethically and in a way which undermined the capacity of the applicant, without a representative beside her, to present her case at the hearing.
…
In our submission, the procedures to be observed by the Tribunal with respect to the use of linguistic expertise should not confuse the role of an interpreter as a channel of communication and a witness as to the substantive matter in question.
…
However, the explicit and implicit use of the Tribunal appointed interpreter was not a fair or just procedure, and did not amount to according 'substantial justice' to the applicant."
The transcript of the proceedings before the Tribunal records that the interpreter was sworn to interpret, but it contains no indication that the interpreter was sworn to give evidence. There is, however, nothing in the Migration Act which requires the Tribunal to act only on the basis of sworn evidence, and any implication to that effect would be inconsistent with the objective sought to be achieved by s 420.
The use of the interpreter both as a translator, and as a commentator on accents arose in this way: the applicant claimed to have arrived in South Korea near Pusan because she recognised the Pusan accent. The Tribunal member asked her what accent she had, she responded that she spoke in a North Korean accent. The following interchange then occurred (p 23):
"MR HARDY: I will now ask the interpreter if she recognises your accent as North Korean? Do you recognise the applicant's accent as North Korean?
INTERPRETER: I do some words and its tone is very flat. I don't know.
MR HARDY:What is the flat tone like?
INTERPRETER: For example, Pusan accent is a very intonations up and down, very strong.
MR HARDY:Yes, and the other North Korean accent?
INTERPRETER: North Korean accent is particularly the word long, sounds like the dialect, but this young lady is, she speaks formal language to me, formal language like Seoul. We do have a formal language, everybody understand. She hear Punyan language, yes, I did but I'm not from Punyan.
MR HARDY:Okay, that is all right. In North Korea, do people learn to speak Seoul style, the way you have been speaking?
INTERPRETER: Yes, we just speak like that. While we have one language, accent is strong and soft." (emphasis added)
Thereafter the Tribunal member asked the applicant to respond to questions "in your home accent", (p 24) and asked the applicant to speak a phrase "in your local language" (p 25). On p 26 the applicant's rendition of "I don't want to go to school today" produced the response from the interpreter that it sounded like North Korean. On p 26 the Tribunal Member asked the applicant to continue the interview in the Northern style which produced the response from the applicant that North and South Korean accents were the same. On p 28 the Tribunal member asked the applicant to speak to him from now on in her Northern village accent. The interview proceeded, then at pp 28-29 the following occurred:
"MR HARDY: Okay. Are we now speaking – I'm going to ask the interpreter – are you monitoring a northern tone in the speech or the Seoul receiving?
INTERPRETER: … that it's the formal language.
MR HARDY:Seoul. So we have not lapsed back into your local village way of speaking?
INTERPRETER: I did understand what is saying.
MR HARDY:We haven't settled back into that manner of speaking. You did understand what I was saying?
INTERPRETER: Yes, I did understand you.
MR HARDY:But why – why did you not relax back into your northern style of speaking? It must come easy to you, if you are northern.
INTERPRETER: Yes, I will, I will try.
MR HARDY:It is not a matter of trying, it should be so dead easy. Just saying the word I will try to speak my normal – my natural homestyle of speech seems incongruous with the ease.
MISS SON:No, but it's not easy for me.
MR HARDY:Why is it no easy to speak in the northern style?
INTERPRETER: At home I spoke like that. There is not much difference in the – in Korean language. I don't know why you interpret like that.
MR HARDY:Well the interpreter – the interpreter says that there is a notable difference, it is notable. The difference exists.
INTERPRETER: Yes, there is a difference but very little. According to other main interpreter, my language was different to South Korean language ..."
It is clear, in my opinion, from a review of the transcript that:
The Tribunal member was sceptical as to the applicant's claim to be of North Korean origins and was trying to test whether the applicant was from North Korea (p 25).
The applicant (at least initially, p 23) and the interpreter were both of the view that there was a recognisable North Korean accent.
The Tribunal member made it plain to the applicant that he wanted her to speak in the North Korean accent, and that he would ask the interpreter to monitor the tone of speech to see whether its style was that of North Korea, or the more formal language of Seoul.
The interpreter's response was that whilst some words sounded North Korean, in general terms the speech was the formal style of Seoul.
The applicant knew and understood that the Tribunal member was proceeding in this way (p 31).
At p 36 the following occurred:
"MR HARDY: Now, since the last time we asked, I am asking the interpreter again, what style of Korean language are we speaking here?
INTERPRETER: I have noticed a few North Korean sort of language and I still maintain general sentences in formal language.
MR HARDY: North Korean words for example?
INTERPRETER: … school and talented and …
MR HARDY: Anything since- since then?
INTERPRETER: No, I heard a few, one or two words.
MR HARDY:I was just asking the interpreter again about what style you have generally been speak in since the last time we asked. She again identified the Seoul style but said that you used a couple of North Korean terminologies. Now we have come to what I think is the end of the hearing today. Are there any facts that you want to raise, that you think you need to raise that you have not had a chance to raise?"
The Tribunal member was alive to the fact that the interpreter used at the time the applicant was detained had commented that the applicant's accent was that of a Northern Korean. He put the applicant fairly on notice that he was using the interpreter present at the interview to assess the characteristics of the applicant's speech, and that assessment was made by the interpreter in the presence of the applicant. The tapes of the interview were available to the adviser, yet she made no submissions on this topic. In my opinion the Tribunal did not act contrary to s 420 in proceeding in this way. I note that in Asrat v Minister for Immigration and Ethnic Affairs (23 August 1996 O'Loughlin J – unreported) the Tribunal relied on information given to the primary decision maker by an interpreter; and a challenge to the propriety of that course of action was dismissed.
Section 476(1)(g) – no evidence
The availability of this ground of review is subject to s 476(4). Given the constraints imposed by s 476(4), it is perhaps difficult to see how s 476(1)(g) would be enlivened in a case such as the present.
In any event the submission is:
"In its reasons the Tribunal makes consistent reference to what a North Korean person is like: in particular, the Tribunal establishes expectations as to language (pages 16-17), geographical knowledge (pages 9-11), and travel (pages 10-13), however it presents no evidence which justifies the stereotypes so established. At page 18 of the decision, the Tribunal states 'a real North Korean should have known the right answers'. With respect, unless the Tribunal had access to a 'real North Korean' of equivalent social and educational background and equivalent interests, the Tribunal could not possibly reach this conclusion. It is abundantly clear from the reasons that the Tribunal did not have access to such evidence."
The expectations on the part of the Tribunal were:
Ones mother tongue should be easier and more comfortable to use than the formal broadcasting language of another society – Tribunal Decision page 17.2.
That the applicant would know how many people lived in her village, and the names of nearby towns – Tribunal Decision page 9.1.
That the applicant would know the name of the next railway station in either direction from her village – Tribunal Decision page 9.5.
That the applicant would be able to circle the location of her village on a map – Tribunal Decision page 10.3.
That the applicant would be able to identify the route she travelled (much of it broad daylight) in order to escape – Tribunal Decision pages 11-13.
In my opinion those were reasonable expectations which could be entertained by the Tribunal without the need for specific evidence from a "'real North Korean' of equivalent social and educational background and equivalent interests".
The submissions in reply – Failure to pursue enquiries
The applicant submits that the RRT was under a duty to consider obtaining the following kinds of evidence.
"(a)A linguistic specialist's advice on the applicant's language and dialect and the probative significance of that language and dialect considering the geographic and sociologic distribution of various dialects in Korea and their change since 1954.
(b)The advice of the South Korean diplomatic and consular representation in Australia as to the applicant's origins.
(c)Advice of specialists in North Korean affairs as to geographic name changes since 1954."
Minister for Immigration and Ethnic Affairs & Anor v Singh (1997) 144 ALR 284 establishes that there is no general rule that the RRT is under a duty to make enquiries, but there may be circumstances in which enquiry by the Tribunal will be necessary to discharge its obligation to act according to substantial justice and merits of the case. At ALR p 291 the Court said:
"These provisions show that the Tribunal's role in cases that come before it is not a passive one, although the circumstances in which the Tribunal could be found to be under an obligation to make a particular enquiry will no doubt be rare …
See also Sun Zhan Qui v Minister for Immigration and Ethnic Affairs 151 ALR 505, 547-8. In Crock Immigration and Refugee Law in Australia (1998) it is said at p 265:
"The common thread running through both these older cases and the more recent examples is the requirement that there be some factor to enliven the duty to enquire. In the refugee cases, the Federal Court has consistently held that there is no general duty in the RRT to make further enquiries. There must be some obscurity raised by the evidence before the Tribunal that goes to an issue that is critical to the determination of the refugee claim."
The RRT addressed the issue of the applicant's language and dialect, and the applicant's knowledge of that part of North Korea which she said she came from. RRT came to the view that her account of her escape from North Korea to South Korea was unbelievable. It examined the passport which bore the applicant's photograph. It described (p 15) the photograph page as being in "pristine condition" without there being any evidence of tampering. These are all matters of fact for the RRT to decide. In my view there was no unresolved obscurity which obliged the RRT to make further enquiry.
Given the conclusions reached by the Tribunal on these factual issues, in my opinion no basis is shown for a conclusion that the RRT's decision is vitiated for failure to enquire into the matters referred to above.
Conclusion
In my opinion the application for review should be dismissed.
I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely
Associate:
Dated:
Applicant in person, represented by Mr Lombard Counsel for the Respondent: Miss R M Henderson Solicitor for the Respondent: Mr A Markus
Australian Government SolicitorDate of Hearing: 6 October 1998 Date of Judgment: 19 October 1998
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