SZDWF v Minister for Immigration

[2005] FMCA 56

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDWF v MINISTER FOR IMMIGRATION [2005] FMCA 56

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to consider relevant matters – whether applicant not accorded natural justice – whether Tribunal exercised power in unreasonable manner – whether Tribunal failed to comply with s.424A Migration Act 1958 – tape of airport interview requested but not made available to applicant.

Migration Act 1958

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 323
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088
NAMO v Minister for Immigration & Multicultural & Indigenous Affairs (No.1) [2002] FMCA 229;
NAMO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 266
NAMO v Minister for Immigration & Multicultural & Indigenous Affairs(No.3) [2004] FMCA 14
Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Abebe v The Commonwealth (1999) 197 CLR 510
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Luu v Minister for Immigration & Multicultural Affairs [2002] FCAFC 369
Minister for Immigration & Multicultural Affairsv Eshetu (1999) 197 CLR 611
NABQ v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 3
Minister for Immigration & Multicultural Affairsv SGLB (2004) 27 ALR 12
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 CLR 24
Minister for Immigration & Ethnic Affairsv Surjit Singh (1997) 74 FCR 553
Minister for Immigration & Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209

Applicant: SZDWF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1875 of 2004

Delivered on: 31 January 2005

Delivered at: Sydney

Hearing date: 30 August 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Mr S. Prince

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr R. Bromwich

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 31 May 2004. 

2. That a writ of mandamus issue requiring the Refugee Review Tribunal to re-determine the applicant’s application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1875 of 2004

SZDWF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Tribunal Decision

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 31 May 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.

2. The applicant, who is a citizen of Iran, arrived in Australia on 14 August 2001.  He applied for a protection visa on 24 August 2001 based on a claimed fear of persecution by reason of political opinion arising from his association with the Fedayeen-e Khalq (FKO) in the early 1980s and his participation in student politics, including involvement in demonstrations in the Iranian city of Tabriz in July 1999.  He claimed to have fled from Iran to Turkey to escape persecution.  He came to Australia two years later.  His movements in the two year period before he came to Australia are discussed further below. 

3. On 30 April 2002 a delegate of the respondent refused to grant him a protection visa.  The applicant sought review by the Tribunal on 1 May 2002.  On 13 June 2002 the Tribunal affirmed the decision not to grant a protection visa (the first Tribunal decision).  On 23 January 2004 that Tribunal decision was set aside by this court (see NAMO v MIMIA(No.3) [2004] FMCA 14. Also see NAMO v MIMIA (No.1) [2002] FMCA 229; NAMO of 2002 v MIMIA [2003] FCA 266) and the matter was remitted to the Tribunal which was reconstituted by having a different member assigned. The second Tribunal decision, made on 31 May 2004, is the subject of these proceedings. Future references to the Tribunal or to the Tribunal decision are to the reconstituted Tribunal and the decision of 31 May 2004.

4. The Tribunal reasons are long and detailed.  The Tribunal sets out the applicant’s past claims including those recorded in a written record of an airport arrival interview conducted by a Departmental officer, in the protection visa application and supporting statement, in a subsequent interview with the delegate (the tape of which was available and was listened to by the Tribunal), in a written submission from his then adviser and in a response to information put to him by the delegate as well as in connection with the application for review and before each Tribunal.  The Tribunal decision contains relevant independent country information. 

5. The applicant failed before the Tribunal essentially because it did not find him to be a truthful or credible witness.  In particular the Tribunal did not accept that he was involved in student demonstrations in 1999 as claimed or that he fled Iran because he feared he would be persecuted because of this involvement.  The Tribunal gave a number of reasons why the applicant’s account was not accepted.  First the Tribunal did not accept “new” claims which were made for the first time to it about involvement of the applicant in a group called the University Student Movement (USM) which had played a significant role in organising the 1999 demonstrations and about his involvement with student leaders in publicising demonstrations and organising medical care for injured students.  The Tribunal had regard to the fact that these claims had not been mentioned in the applicant’s previous written or oral submissions to the Department or the Tribunal.  The Tribunal did not believe that the applicant would have failed to mention such important matters until after his application was refused by the first Tribunal and did not accept the reasons he gave for the omission of such claims (that he had given broadly consistent evidence since he arrived and had merely provided additional detail when asked for it, that he was not given an adequate opportunity to provide a full account of the situation until after his application was refused by the first Tribunal because his first adviser did not take adequate instructions and that neither the delegate or the first Tribunal asked him specific questions about his political activities at the university or his role in the 1999 demonstrations).  The Tribunal rejected the suggestion that the applicant had not been provided with an opportunity to provide evidence about his claims when interviewed by the delegate or questioned by the Tribunal.  It stated that it found it unlikely that the applicant would have failed to give his first adviser a reasonably full account of his activities prior to and during the July 1999 demonstrations and also unlikely that his adviser would have failed to mention such important claims.  The Tribunal did state in relation to the statement accompanying the protection visa application:

   “However, the statement provided by this adviser does appear to have some inadequacies and I am prepared to give the benefit of the doubt and accept that [the applicant’s] claims were not properly recorded in his initial written statement”.

6. Further, the Tribunal found that the applicant’s evidence before it was confused and unconvincing.  His description of the USM had changed.  Initially he described it as of a body that was not publicly known and had secret meetings.  He later claimed that it was affiliated with an organisation which was not clandestine.  The Tribunal expressed reservations about the applicant’s explanation that some of the problems with his evidence arose because he was under stress and had taken medication prior to the first hearing.  It stated that it might have been prepared to give the applicant the benefit of the doubt and accept his explanation for his confused and contradictory evidence, but important parts of his evidence in this regard were at odds with other information before the Tribunal.  The Tribunal detailed its concerns about particular aspects of the applicant’s evidence before concluding that, after considering all of the relevant evidence, it did not accept that the applicant was involved in a student group called the USM or any other student group or organisation, that he was closely associated with student leaders or helped to publicise the 1999 demonstrations in Tabriz or that he was involved in organising medical care for students injured in the 1999 demonstrations in Tabriz.  The Tribunal concluded that these claims were concocted after the applicant’s application was refused by the first Tribunal in order to enhance his chances of success with the second Tribunal. 

7. The Tribunal also rejected the applicant’s underlying claims that he was involved in student demonstrations in Tabriz in 1999, that he was identified almost immediately as a participant in these demonstrations, that his house was raided and some publications found and that the authorities had been actively seeking him since that time.  It stated that it had considered whether the applicant had simply exaggerated his situation when his application failed before the first Tribunal.  It concluded that this was not the case.  In the first place the Tribunal had regard to information from Turkish authorities which indicated that the applicant did not enter Turkey from Iran in July 1999 as claimed but rather in February 2000, that he subsequently travelled to Malaysia and that he returned to Iran from Turkey on 5 October 2000 and remained there until 6 August 2001.  The Turkish records also indicated that the applicant had used the same travel document throughout.  He had never claimed that he experienced problems with the Iranian authorities during this time.  Nor had he given an explanation of how he had avoided problems during the time he claimed he was actively sought by the authorities.  The Tribunal found that if the Turkish information was correct, as it believed, the applicant’s return to Iran and untroubled residence there for some ten months in 2000/2001 was a clear indication that he was not of adverse interest to the Iranian authorities and did not fear persecution by them or by anyone else in Iran. 

8. The Tribunal considered, but did not accept, the applicant’s explanation that the Turkish records did not provide an accurate account of his whereabouts from mid-1999 onwards.  He claimed that his initial entry to Turkey in July 1999 was not recorded because it was illegal and that the records showing that he returned to Iran in 2000 were false and were arranged by a people smuggler to enable him to remain in Turkey beyond the time permitted.  The Tribunal had regard to the fact that the applicant had said nothing about being illegal in Turkey for extended periods after July 1999 until advised about the Turkish movement records and asked to explain his apparent return to Iran.  It referred to the notes of the airport interview conducted when the applicant arrived in Australia to the effect that he had said that he left Iran on his own passport without problems and that he had travelled several times to Syria in order to renew his visa to remain in Turkey. 

9. The Tribunal referred to the applicant’s claims that the information recorded by the interviewing officer in the airport interview was not correct and to the fact that the tape recording of this interview had not been provided to him.  However it noted that most of the information contained in the officer’s notes was broadly consistent with the claims made by the applicant in his later submissions.  It did not believe that the interviewing officer would have recorded that the applicant left Iran without problems in July 1999 or that he travelled to Syria several times to renew his visa if the applicant had not provided this information.  It also observed that the applicant repeated the claim that he had travelled to Syria several times in order to renew his Turkish visa in the written statement accompanying his protection visa application.  The Tribunal accepted that there were some flaws in this statement but did not accept that both the Department officer who interviewed the applicant on arrival and his first adviser would have made the same mistake regarding the information he provided about his travel to and from Turkey.

10. The Tribunal did not accept the claim of the applicant that he had attempted to enter Syria once unsuccessfully and that his attempts to explain this had led to misunderstanding on the part of both the Departmental officer and the first adviser.  Nor did the Tribunal find it plausible that the applicant would have mentioned that he had attempted to enter Syria on one occasion without success to both the Departmental officer and his first adviser but would not have told them about his repeated use of a people smuggler to remain in Turkey.  The Tribunal also had regard to the fact that in response to the delegate’s letter, which specifically asked for details of his travel to and from Turkey, the applicant had said nothing to correct his earlier claim that he had travelled to Syria.  In particular he had said nothing about complicated illegal arrangements to remain in Turkey.  The Tribunal believed that the applicant told the Department and his first adviser he had gone to Syria several times to explain his alleged long stay in Turkey and to disguise the fact that he had returned to Iran and that he subsequently concocted the claims regarding the continuing assistance he received from the people smuggler to enable him to remain in Turkey in order to overcome the problems caused by the information provided by the Turkish authorities.

11. In reaching this conclusion the Tribunal considered the statement submitted by the applicant dated 28 May 2003 and signed by six people which stated that the applicant was in Turkey between 13 July 1999 and 13 August 2001 and never left the country using the Gurbulak border.  The Tribunal reiterated that it did not find the applicant to be a generally credible or truthful witness.  It found his evidence regarding his time in Turkey and his dealings with people smugglers to be contradictory and unconvincing and found there was nothing in the statement to cause it to question these findings.  It believed that the statement was prepared at the applicant’s instructions to overcome the problems caused by the information provided by the Turkish authorities regarding his return to Iran in 2000. 

12. The Tribunal believed the information provided by the Turkish authorities provided a genuine, although incomplete, record of the applicant’s travel to and from Turkey in recent times.

13. A further reason advanced by the Tribunal for not accepting the applicant’s claim to have been involved in the student demonstrations in Tabriz and sought by the authorities was that much of the evidence he gave regarding his participation in student politics and demonstrations and the problems this had caused him was unconvincing or at odds with other information before it.  His claim to have been identified and his home visited several times by police less than a day after the demonstration was found to be far-fetched and implausible.  The Tribunal went on to say that, even if it accepted that the applicant had participated in the demonstrations, his house raided and banned publications found as claimed, it did not accept that the authorities would continue to pursue him and harass his family over a period of years, given that relatively few of those involved were detained after the July 1999 demonstrations and very few were convicted of any offence.

14. For the purposes of the decision the Tribunal accepted the applicant’s claim of political involvement in the FKO in 1980 and that he was detained because of this, but found that his release after a short time and his ability to establish a successful business, travel abroad and return home without problems meant that he did not face a real chance of experiencing harm amounting to persecution in the reasonably foreseeable future because of this past involvement and detention. 

15. Finally the Tribunal did not accept that the applicant had had any real involvement in politics after the early 1980s.  It found that this indicated that he was not greatly interested in politics and that it was this rather than fear or political repression in Iran which explained his lack of political involvement in recent times.  The Tribunal did not accept that the applicant had a well-founded fear of persecution in Iran for reason of political opinion because repression by the authorities meant that he had been denied the right to express his views openly as contended.  It did not accept that he would speak out or become involved in political activities which might place him at risk of persecution in Iran. 

16. In conclusion, the Tribunal did not accept that the applicant had left Iran because he feared he would be persecuted by reason of his political opinion or that there was a real chance that he would be persecuted if he returned to Iran by reason of his political opinion or for any other Convention reason.

Background to this application

1. The applicant filed an application for review in this court on 18 June 2004. He now relies on an amended application filed in court which contains four grounds of review. The first ground is that the Tribunal erred in law in failing to consider all relevant matters, being the applicant’s version of events given at his initial interview as recorded on a tape of that interview. Secondly it is claimed that the Tribunal exceeded its jurisdiction as the applicant was not accorded natural justice in that the first and/or second respondents (the Minister and/or the Tribunal) failed to provide to the applicant a copy of the tape of the applicant’s initial interview. The third ground is that the Tribunal exercised its decision-making power in a manner so unreasonable that no reasonable decision-maker would have so exercised it, in that the first and/or second respondents proceeded in the absence of obvious material that was readily available, namely the tape of the applicant’s initial interview. Finally it is contended that the Tribunal failed to comply with s424A of the Migration Act 1958 in that the first and/or second respondents failed to provide to the applicant with a copy of the tape of the applicant’s initial interview. 

2. In order to consider these grounds, each of which relates to the so-called initial or entry interview, it is necessary to outline some of the background to these proceedings.  On arrival at Sydney airport on 14 August 2001 the applicant was interviewed by an officer of the respondent’s Department.  The officer made a typed record of the interview on a form in the format of a questionnaire with answers inserted in a different type font.  The interview was also tape recorded.  The tape was not provided to the applicant or to the Tribunal.  Of importance to the applicant’s case is that the typed record of the initial interview stated that he said that his Turkish visa only permitted him to stay there for three months so he had to go to third countries to renew his visa and that he went to Syria a number of times and to Malaysia twice. 

3. In the statement accompanying his protection visa application made on 24 August 2001 the applicant also said that he had to leave Turkey every three months in order to get a new three-month visa, that he went to Syria several times and also to Malaysia to renew his visa.  In other words the substance of what he is recorded as having said to the Departmental officer is consistent with what is contained in the written statement accompanying his protection visa application which was signed by him.  On 6 September 2001 the applicant was interviewed by a Departmental delegate in the presence of his solicitor.  It is important to distinguish this interview (the tapes of which were provided to the applicant and to the Tribunal) from the initial airport interview.  The application for a protection visa was also supported by a written submission from the applicant’s solicitor and migration agent made on 13 September 2001. 

1. On 28 March 2002 the delegate of the respondent wrote to the applicant seeking further information in relation to aspects of his claim and in particular in relation to his movements in and out of Turkey.  This letter referred to the claims recorded in the initial interview and in the statement accompanying the protection visa application that the applicant stayed in Turkey for over two years and that he left every three months to get a further three month period there, sometimes going to Syria and on two occasions to Malaysia and that he threw his Iranian passport away about 12 months after he entered Turkey because it had expired.  The Department asked for details of the trips to Syria and/or Malaysia, including travel documents used, on the basis that such details would assist it in understanding how the applicant was able to travel without a passport.  On 5 April 2002 (before receiving a response) the delegate provided further information to the applicant that had been received from the authorities in Turkey concerning the applicant’s entry and exit from that country.  His comment was sought.  The Department referred to the fact that there was no record of the applicant having entered Turkey in July 1999 at the border crossing closest to where he claimed he had left from Iran and noted that the first entry record from the Turkish authorities was that the applicant entered Turkey on 28 February 2000.  The records also showed that the applicant had departed Turkey at the crossing point near Iran on 5 October 2000 and re-entered Turkey on 6 August 2001 at the same place (this indicating a period of ten months that he was outside Turkey and in Iran).  The records did not confirm any travel to Syria by the applicant.  The delegate sought an explanation as to where the applicant was and what he was doing between 5 October 2000 and 6 August 2001.  The letter also noted that the applicant had not provided details of addresses where he had lived at the relevant times in his application form. 

2. On 11 April 2002 the applicant’s adviser provided a response to the delegate.  The response complained that the Department routinely refused to provide transcripts or copies of interview tapes of initial entry interviews such as the one conducted with the applicant and submitted that it was not appropriate for the information obtained in such an interview to be used to cast doubt on the applicant’s bona fides.  The letter suggested that no useful comments could be made without access to the information contained in such interview.  A copy of the tape or a transcript of the airport interview was requested.  An explanation was provided by his adviser for the fact that in the entry interview the applicant had claimed to speak Farsi, Turkish and a little English but in the protection visa application had claimed to speak only Persian (Farsi).  The explanation did not take issue with the accuracy of the record of the airport interview in this respect but stated that at the airport the applicant did not seek to hide his ability to speak some Turkish or English but when completing the application form using a Persian interpreter he merely mentioned that he spoke Persian and that he would need a Persian interpreter at any hearing.  He had seen no reason to reiterate what he had already told the Immigration officials about speaking other languages. 

3. The adviser also stated that the applicant had advised that he had not thrown away his passport and had not claimed to have done so during the interview with the Departmental officer.  Such a claim was made by the applicant in his protection visa application (that his travel document was “expired and destroyed” and in the attached statement of 24 August 2001 (“As my passport was expired after I left Iran I threw it away about 13 months ago”).  However in a letter of 3 April 2002 the applicant claimed that he had given his passport to the people smuggler one day before he left Turkey.  He stated that while the statement he had made in connection with his application had been that he had put his passport aside ‘it has been written that I have thrown it away’.  In other words he took issue with the accuracy of the interpreter.  This appears to be a reference to the interpreter used by his adviser to prepare the written statement accompanying his protection visa application.  His claim on 3 April 2002 was that he had kept his passport, paid a person he had met in Istanbul to make adjustments to it, that the passport was taken, the adjustments made, the passport returned to him and that it was handed to the person who organised his trip to Australia approximately one day prior to his departure.  He had used a Greek passport to travel to Australia.  The solicitor’s letter of 11 April 2002 also provided an explanation from the applicant as to how he entered Turkey.  He claimed that he did so in July 1999 with the assistance of a people smuggler.  The requisite stamps were placed in the passport but no computer entry was made.  It was claimed that with the assistance of the smuggler’s cousin his entry was eventually recorded on the computer system in February 2000 and that this cousin made entries into the computer system indicating the applicant had exited and entered Turkey (at the border with Iran) in October 2000 and August 2001 when in fact he did not leave the country in this way.  It was conceded that the applicant did travel to Malaysia from Turkey.  The applicant’s adviser also claimed that the applicant had encountered some difficulties when he attempted to travel to Syria because he was unaware that a visa was required, that he had passed through the Turkish side of the border but had been refused entry by the Syrians and when he returned to the Turkish side of the border the authorities cancelled his exit stamps and entries on the computer.  The letter stated that the applicant had travelled on a regular basis out of Turkey in order to renew his status in that country. 

4. On 30 April 2002 the delegate refused the grant of a protection visa.  In the decision the delegate stated that the applicant had been interviewed at Sydney airport when he arrived without documentation on 14 August 2001 and also interviewed by the delegate on 6 September 2001 at the detention centre.  The delegate referred to inconsistent information provided by the applicant and also to the fact that in the interview of 6 September 2001 the applicant had advised that there was nothing he needed to change in the statement accompanying his protection visa application.  The delegate noted that the applicant had been invited to provide details of his trips to Syria and Malaysia but had not taken the opportunity to do so.  Instead he had attempted to explain the Turkish records through problems with a smuggler and a cousin working in the security apparatus dealing with passport control and by claiming that it took six months to get his entry into Turkey sorted out because the cousin was transferred from the area during this period.  However the delegate noted that the applicant had elsewhere claimed that there was no problem for him to get a visa to Turkey.  There was no evidence of the applicant ever having gone to Syria from Turkey.  The explanation of his difficulties on one occasion was found unconvincing.  The delegate also expressed some difficulties with the explanation provided by the applicant for the Turkish documents which showed his return to and stay in Iran. 

5. The applicant sought review by the Refugee Review Tribunal on 1 May 2002.  That application was supported by a written submission.  The applicant’s statement of 3 April 2002 which had been provided to the delegate was re-submitted to the Tribunal including an additional explanation for the inaccuracy of the statement accompanying his protection visa application which had been deleted from the copy of the statement provided to the delegate.  It was said that ‘mistakes’ had been made by his interpreter.  The applicant also told the first Tribunal that he had problems with his migration agent and that much of the information in his statement and application form was wrong.  His new adviser told the first Tribunal that the applicant had never said that he travelled to Syria every three months. 

6. On 13 June 2002 the first Tribunal affirmed the decision not to grant a protection visa.  In NAMO v MIMIA [2004] FMCA 14 Federal Magistrate Raphael found that there had been a lack of procedural fairness as discussed below.

7. After the matter was remitted to the Tribunal for reconsideration, a different solicitor and migration agent acting on behalf of the applicant forwarded a further statement to the Tribunal and submissions dated 14 March 2004.  The applicant attended hearings held by the second Tribunal on 16 March 2004 and 2 April 2004.  At the end of the second of these hearings the applicant provided a letter with six signatures stating that he had remained in Turkey from 13 July 1999 until 13 August 2001, contrary to the Turkish immigration records.  Further comment on adverse information and submissions were provided to the Tribunal on behalf of the applicant including a submission that his claims had been consistent throughout but that the initial statement was not a detailed account of his claims. 

8. Before considering the grounds raised by the applicant in these proceedings it should be noted that, unlike the first Tribunal, the second Tribunal accepted for the purposes of the decision that the applicant had belonged to a political organisation called the FKO during the early 1980s.  This had been a critical factor in the first Tribunal decision and in the decision of this court in NAMO v MIMIA. 

9. In NAMO Raphael FM found that the first Tribunal had made a finding concerning the applicant’s credibility based upon the report of the airport interview.  The applicant, through his advisers, had understood the importance of the airport interview and asked the Department for a copy of the tape.  According to Federal Magistrate Raphael that request was refused.  His Honour stated at [15]:

   I am of the view that when an organisation has it in its power to clear up completely a disputed fact without unreasonable difficulty (as was the case here) then to decline to take the necessary steps to clarify the dispute and to make a finding against the applicant in that clarifying material constitutes a failure to provide the applicant with procedural fairness. In Prasad v MIEA (1985) 65 ALR 549 at 563 the failure to proceed [sic] in the absence of obvious material that was readily available was described as an “exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it”. This was approved by the Full Bench in Luu v MIMIA [2002] FCAFC 369 at [28]. It seems to me that the failure here falls into that category.

10. His Honour also found that the first Tribunal was in error in stating that the applicant had not previously raised a claim about the authorities finding illegal books and material at his home.  Such a claim had been raised in the interview between the Departmental delegate and the applicant.  Raphael FM concluded that there was a failure to provide the applicant with procedural fairness in excluding him from obtaining a transcript of his initial interview.  The applicant had told the Tribunal that the précis of this interview was not correct but the Tribunal had relied on it in finding that there were inconsistencies in the applicant’s claims.  The fact that the tape may have confirmed the truth of some or all of the applicant’s claims about what he had said may well have made his evidence more plausible.  When this possibility was combined with the ‘single erroneous finding of fact’ which also affected the applicant’s credibility, Raphael FM found that it was appropriate to set aside the decision of the Tribunal.  His Honour was not satisfied that the two errors taken together constituted breaches that could not have affected the outcome.

This application

1. In these proceedings the applicant contended generally in relation to each of the four grounds relied upon that a basis upon which the Tribunal found the applicant to be an unreliable witness was the variation between his description of events at the initial airport interview and the later accounts given by him throughout the application and review process.  It was also contended that at the second Tribunal hearing (as at the first Tribunal hearing) the applicant had maintained that there were inaccuracies in the record of the airport interview concerning the claims he made at that point.  The applicant submitted that the Tribunal had found that a real issue of credibility arose from the divergence in accounts given by the applicant over time.  The applicant had sought to rebut those attacks on his credibility by establishing that in fact there had been consistency between what he said at the airport interview and later accounts.  The applicant had asked on many occasions for a copy of the airport interview tape to be provided to him by the Department, commencing from before the delegate’s decision.  He had continued to seek a copy of the tape at all times thereafter, including in interlocutory proceedings before Federal Magistrate Raphael in which his Honour declined to order that the tape be produced for the purposes of the judicial review proceedings as it had not been before the Tribunal. 

2. In oral submissions the legal representative for the applicant clarified that it was not contended that there was a denial of procedural fairness on the basis that the absence of the tapes meant that the applicant was being denied an opportunity to put forward a broader case, but rather that the tape should have been available so that the applicant could deal with whatever alleged inconsistency there was between the airport interview and the matters put to him at the Tribunal hearings. 

3. The applicant’s contentions were put on the alternative bases that there was a failure to have regard to relevant considerations, a failure to accord natural justice, that the decision-making power was exercised in a manner so unreasonable that no reasonable decision-maker would have so exercised it and/or that there was a failure to comply with s424A of the Migration Act 1958. Each of these grounds is based on the failure to provide a copy of the tape of the airport interview to the applicant and the fact that the Tribunal proceeded to make findings based on what was claimed in that interview despite a dispute as to what had been said and in the absence of what is said to be obvious material readily available being the tape of the airport interview.

4. It is not disputed that neither the first Tribunal nor the second Tribunal had before it the tape of the airport interview.  Despite the decision of Raphael FM, the airport interview tape was not provided to the applicant by the second Tribunal.  It is apparent from the Tribunal reasons for decision, which are the only evidence before the court as to what occurred in the hearings before the second Tribunal, that the applicant repeated his concern about the allegation that there were differences between what he had said on arrival and what he claimed later and that he had not had access to the tapes of his first interview.  The only evidence before the court of the situation in relation to the availability of the airport tape from the perspective of the second Tribunal is that the Tribunal recorded that in the course of the hearing on 2 April 2004 it advised the applicant that it ‘had tried to obtain the tapes, but had still not received them’.  In the findings and reasons part of its decision, when discussing what the applicant was alleged to have said in the airport interview and his claim that the information recorded was not correct, the Tribunal stated “Unfortunately, the tape recording of this interview, if it exists, has not been provided to this Tribunal”.  There is no evidence before the court as to what steps the Tribunal took to obtain the tape of the airport interview from the first respondent’s department.  In the unusual circumstances of this case it is the first respondent to these proceedings who is in possession of the tape.  There is no dispute that the first respondent has at all material times had access to the tapes.  I accept that the Tribunal itself did not have a copy of the tape of the airport interview.  On the evidence before me (which consists of a bundle of relevant documents assembled by the solicitors for the respondents which does not appear to include all of the material on the Tribunal file) I cannot be satisfied as to what steps the Tribunal took to obtain the tape to clarify the dispute about the content of the interview.  It is conceded by Counsel for the first respondent that the tape is still in existence (despite the Tribunal’s passing reference to ‘if it exists’).  There is no evidence before the court to establish that any unreasonable difficulty inhibited clarification of the dispute by provision of the tape.  There is no evidence before the court as to the first respondent’s attitude to any request by the Tribunal for provision of the tape.  The tape of the applicant’s subsequent interview with the Departmental delegate was provided to the Tribunal.  It is necessary to determine whether in these circumstances any jurisdictional error on the part of the Tribunal is established.  The mere fact of the absence of the tape does not of itself establish such error.

5. The Tribunal’s functions are inquisitorial:  Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at [76]; Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [18]. Sections 424 and 427 of the Migration Act 1958 confer a power on the Tribunal to obtain information but do not impose an obligation or duty to exercise such power (see MIMIA v SGLB (2004) 27 ALD 12 at [43]). The Tribunal has no general duty to make its own inquiries in order to make out an applicant’s case: Abebe v The Commonwealth (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ. However in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Wilcox J suggested that where it was obvious that material was readily available which was centrally relevant to the decision to be made then “to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of a decision-making power in a manner so unreasonable that no reasonable person would have so exercised it” (at 169-170). Also see Luu v MIMA [2002] FCAFC 369 at [28] and [56]-[57]; MIEA v Surjit Singh (1997) 74 FCR 553 at 558 and MIMA v Eshetu (1999) 197 CLR 611 at [137] per Gummow J.

6. It is the case that, as Gummow J said in Eshetu at [137] in a different context:

   “where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it would be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.  It may be otherwise if there is evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.”  (Also see Gleeson CJ and McHugh J at [39]-[52]).

7. It is also the case that the ground of Wednesbury unreasonableness is more generally seen as focused on the reasoning of the decision-maker and it has not been established that the decision of the Tribunal not to affirm the decision of the delegate was so manifestly unreasonable “that it might almost be described as being done in fad faith” or “so absurd that no sensible personal could ever dream that it lay within the powers” of the Tribunal (see Associated Provincial Picture Houses  Howes Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 and Re MIMA; Ex parte Palme [2003] HCA 56 at [30] per Gleeson CJ, Gummow and Hayne JJ).

1. However the failure to make inquiries may, albeit in limited cases, be an exercise of power in an unreasonable manner and hence a constructive failure to exercise jurisdiction or be a breach of the rules of natural justice, whether or not it renders the ultimate decision ‘unreasonable’ (see MIMA; Ex parte Cassim (2000) 175 ALR 209 at [12]-[14]). I am satisfied, as explained below, that there was a lack of procedural fairness and an unreasonable exercise of the decision-making power such that the Tribunal made a jurisdictional error. I am satisfied that the tape was material that was, given that its existence is not disputed and as there is no evidence as to why it was not made available to the Tribunal, ‘readily available’. I have had regard to the fact that the Tribunal did state that it had tried to obtain the tapes, but the extent of such inquiries is not apparent on the material before the court (cf Prasad which referred to proceeding to a decision without making “any” attempt to obtain the information).  The Tribunal relied on what was recorded as having been said by the applicant in the airport interview to make specific findings based on inconsistencies between what was said by the applicant in the airport interview and in the protection visa supporting statement compared with later claims.  Such perceived inconsistencies and implausibilities and the conclusion that the applicant’s evidence regarding his time in Turkey and his dealings with people smugglers was contradictory and unconvincing were factors relied on to reject the applicant’s credibility as well as his particular claims. 

2. The applicant has consistently disputed the accuracy of the record of the airport interview and has repeatedly requested a copy of the tape.  The inadequacy and inaccuracy of the material said to be consistent with the record of airport interview (the protection visa application statement) was acknowledged by the Tribunal.  In such circumstances not only was the applicant denied the opportunity to put his case on the basis of material readily available but, critically, the Tribunal made a decision in which it relied on the written record of the airport interview to establish inconsistencies taken into account in assessing the applicant’s credibility and claims.  The tape was centrally relevant to the decision.  Had a copy of the tape been provided it may have confirmed the applicant’s claims about what he said and, if so, it could have been relevant to the Tribunal assessment of his credibility.  The evidentiary foundation for a duty of enquiry has been established in the particular circumstances of this case.

3. As was pointed out by the Full Court in W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 89 a Tribunal may have before it a number of accounts of events given by an applicant, on which it can assess the applicant’s credibility. The Court outlined how numerous accounts could be given in the normal course of events by a protection visa applicant. In relation to an initial airport interview stated, at [11]:

   When a non-citizen arrives in Australia without a visa, he or she is interviewed by an officer of the Minister’s Department … who asks standard form question and makes a written record of the answers that are given.  One question asked is:  Why did you leave your country of nationality?  This appears to be the first opportunity a putative refugee has to explain why he fears persecution, although that is not the answer sought by the question.  It must be remembered that people who come to Australia seeking refugee status often speak no English so the question is usually answered with the assistance of an interpreter.  It should not be assumed that the translation is precise.  It may be anticipated that the information recorded will be a brief summary of the applicant’s true case, and will often be given in words which the applicant would not have chosen were he able to speak English.  This involves no criticism of the interpreter who assists the non-citizen in responding to the questions put … Far from it.  Often the interpreter will not be aware of the significance that will be attached to the precise words that are used.  It may be that the interpreter acts in the mistaken belief that a summary of the applicant’s case is sufficient.  On some occasions the “initial interview” may be recorded. 

4. Given such circumstances, a Tribunal should exercise caution in relying on an initial account, particularly where an applicant has consistently disputed the written record of the interview.  Where a dispute about what was said could be clarified by the Tribunal obtaining a copy of the tape of the airport interview, the combination of failing to obtain the tape or at least to take all reasonable steps to obtain the tape, constitutes a failure to provide the applicant with procedural fairness where the Tribunal nonetheless relied on inconsistencies in part because of what was recorded as said in that interview and made findings adverse to the applicant on that basis.

5. Counsel for the respondent contended that there was no lack of procedural fairness.  It was submitted that the Tribunal had made an unsuccessful attempt to obtain the tape and then took appropriate steps to satisfy itself that the record of interview that was available was accurate, relying on its consistency with the applicant’s statement supporting his protection visa application and the fact that the accuracy of this supporting statement had not been put in question in the response to the delegate’s letters of 28 March 2002 and 5 April 2002.  There is no evidence before the Court as to the steps the Tribunal took to obtain the tape.  As to the accuracy of the supporting statement, in the applicant’s letter dated 3 April 2002 (sent at a time he was in detention) he claimed that he had said in his application form that he had put his passport aside “but it has been written that I have thrown it away.  I have not said that to the Afghan interpreter who was not fluent in Iranian Persian and kept asking me to repeat my answers on occasions.”  When that submission was provided to the Department by the migration agent who had represented the applicant when his protection visa application was made, the next part of the statement was deleted by being crossed out.  Subsequently a full copy of the statement was provided to the first Tribunal by a different migration agent.  From that full copy it is apparent that the applicant continued “Moreover, I have not said in my application form that I can only speak Persian because I have already said at the airport that I can speak Persian, Turkish and some English.  Hence, there was no reason for me to deny knowing my mother tongue of Turkish.  Both of these matters have been mentioned as mistakes made by the interpreter.  If I knew that I could ask to change the interpreter, I would have definitely asked for that and requested an Iranian Persian speaker to assist me because a lot depended on it.  Unfortunately, I discovered this a few months after my arrival here”.

6. In such circumstances it cannot be said that the accuracy of the statement supporting the protection visa application was not put in question by the applicant.  Indeed this was reiterated in a submission by the applicant’s second adviser to the first Refugee Review Tribunal, and repeated in the hearing of the first Tribunal in which the applicant’s adviser suggested that there was poor representation and translation in relation to the statement provided with the protection visa application, that the applicant spent very little time with his first adviser, that he had problems understanding the Afghan interpreter who assisted at the interview, that some of his evidence was taken in English which he did not speak well, that the statement had never been read to him and that he had not been aware of its contents until recently.  The applicant made similar points in his evidence to the first Tribunal.  He reiterated his concerns about the accuracy of the statement accompanying his protection visa application in the hearing before the second Tribunal. 

7. Further, in the Tribunal reasons for decision, the Tribunal accepted for the purposes of considering the credibility of the “new” claims made to it, that the statement provided by the applicant’s first adviser in conjunction with his protection visa application did appear to have some inadequacies.  It was prepared to accept that the applicant’s claims were not properly recorded in his initial written statement.  Yet when it came to a consideration of the credibility of the applicant’s other claims about involvement in the student demonstrations and the consequences, while accepting there were some flaws in the statement provided with the protection visa application, nonetheless the Tribunal relied on the fact that that statement repeated the claims recorded as having been made in the airport interview (that the applicant travelled to Syria several times to renew his visa).  The Tribunal did not accept that both the Departmental officer who interviewed the applicant on arrival and his first adviser would have made the same mistake regarding the information he provided about his travel to and from Turkey or that both the officer and the first adviser would have confused his evidence that he tried to enter Syria once unsuccessfully with a claim that he entered Syria several times to renew his Turkish visa.  The Tribunal also found that it was not plausible that the applicant would have mentioned that he attempted to enter Syria on one occasion without success to both the Departmental officer and his first adviser but would not have told either of them about his repeated use of a people smuggler in order to remain in Turkey.  This explanation does, however, assume that the statement accompanying the protection visa application was prepared without reference to a copy of the written record of the airport entry interview.  There is no evidence before the court as to whether a copy of the record of airport interview was provided to the applicant or his adviser.  In all the circumstances it cannot be said that there was no practical unfairness because claims consistent with those recorded in the record of the airport interview were also made in the protection visa application. 

8. The respondent also contended that the Tribunal had taken the applicant to the written record of the initial interview for the purpose of addressing his late claim about the involvement of people smugglers to account for the Turkish movement records but had placed no reliance on the inconsistency between the initial claim recorded in the questionnaire and in the applicant’s statement about several visits to Syria and the later claim about people smugglers falsifying Turkish movement records.  Rather it was contended that the Tribunal did not accept either claim as a basis for doubting the accuracy of the Turkish movement records.  It was submitted that even if the Tribunal had found that the initial claim concerning Syria had been one of a failed rather than successful entry into Syria this would not have made any difference, as it went to the same end of attempting to explain the applicant’s alleged long stay in Turkey and to disguise his return to Iran and it was overtaken by the people smuggler explanation which the Tribunal did not accept.  In other words the importance of the initial interview record was said to be that it omitted any mention of the subsequent claim by the applicant that he remained in Turkey illegally for extended periods after July 1999 with the assistance of people smugglers and it was this omission which the Tribunal regarded as significant, which was something that the tape of the interview could not change. 

9. However, reading the Tribunal decision fairly and as a whole it is apparent that what the applicant was recorded as having said in the airport interview relating to his claims during his time in Turkey was taken into account by the Tribunal not only in rejecting the specific claims of the applicant about people smugglers but also in finding that he was not a truthful or credible witness.  The Tribunal reasons for decision record that in the hearing the applicant said that “He believed he had had problems in relation to his application because of differences between what he said on arrival and what he claimed later and added that he had never had access to the tapes of his first interview”.  The Tribunal indicated that it was not concerned that the applicant’s detention in 1980 was not mentioned in the notes of that interview given that it was a brief interview and that he might not have mentioned something which happened so long ago or that the interviewer might “have failed to record it” believing it to be too long ago to be significant.  At that point the Tribunal brought to the applicant’s attention that the notes of the interview stated that he had participated in the 1999 student demonstrations and subsequently fled to Turkey and that the Tribunal’s “only concern in relation to statements he had made on arrival related to his claims during this time in Turkey” which would be discussed.  The Tribunal did refer to the contents of the airport interview in finding that it believed the information provided by the Turkish authorities provided a genuine, although incomplete, record of the applicant’s travel to and from Turkey in recent times and in rejecting the applicant’s claims that the records were not accurate.  However what was recorded in the initial interview was also relevant to the Tribunal’s findings that it believed that the applicant had told the Department and his first adviser that he had gone to Syria several times to explain his alleged long stay in Turkey and to disguise the fact that he had returned to Iran and that he subsequently concocted claims regarding continuing assistance from a people smuggler enabling him to remain in Turkey to overcome the problems caused by the information provided by the Turkish authorities.  After discussing this information the Tribunal reiterated that it did not find the applicant to be a “generally” credible or truthful witness and “found his evidence regarding his time in Turkey and his dealings with people smugglers to be contradictory and unconvincing”.  It is clear that the Tribunal did not accept the explanation that the notes of the airport interview were not correct in relation to what he had said, in particular about his movements to Syria in order to renew his visa to remain in Turkey.  It made a finding about what was said at the airport interview by the applicant which was adverse to the applicant in the face of the applicant’s dispute as to the accuracy of the record of the airport interview, in circumstances where the tape of that interview was not before the Tribunal and where the applicant also disputed the accuracy of the account provided in connection with his protection visa application, an account which the Tribunal accepted did not properly record his claims.  It relied on such finding in concluding that the applicant’s evidence was contradictory and unconvincing. 

10. The Tribunal’s decision was substantially based on the Tribunal’s view of the applicant’s credibility.  It was on this basis that the Tribunal rejected the statement dated 28 May 2003 and signed by six people stating that the applicant was in Turkey between 13 July 1999 and 13 August 2001 and never left the country using the Gurbulak border as having been prepared at the applicant’s instructions. 

11. While the Tribunal also provided other reasons for rejecting the applicant’s credibility and finding his claims to be concocted (particularly in relation to his claims about what had occurred in Iran) I am not satisfied that the Tribunal’s findings about what the applicant had said in the first airport interview was such that any error made by the Tribunal had no effect upon its substantive findings.  The findings about the airport interview were interwoven with the other findings on which the Tribunal relied in relation to the applicant’s credibility, such that it can be said that a critical element in these findings was the discrepancy the Tribunal found between statements in the initial interview at the airport (albeit that these were seen as consistent with the protection visa application) and later statements made by the applicant.

12. The decision of the Full Court in W375/01A is also instructive in relation to the issue of whether it can be said that the lack of procedural fairness could not have affected the outcome because of other findings of the Tribunal.  In that case a Tribunal had refused to listen to a tape of a Departmental interview.  When the Full Court of the Federal Court listened to that tape it found that the notes were incomplete and that the tape supported the claims of that applicant about what he had said in the interview in question.  In that case one reason which had led the Tribunal to the conclusion that the applicant was not a witness of truth was its view of what he had said, and not said, in his initial interview.  That Tribunal had refused to receive relevant and probative evidence available to it.  While this case does not involve a refusal by the Tribunal to receive relevant evidence but rather a failure to take the necessary steps to obtain a tape or transcript of the initial interview, the applicant has complained that it was not recorded correctly.  The Tribunal relied on the record to indicate inconsistencies.  Material was readily available to resolve the dispute about what was said, an issue centrally relevant to the decision. 

13. I am satisfied that the Tribunal did place significance on aspects of what was said by the applicant at the airport interview, as well as what was not reported as being said by the applicant.  As was said by Hill J in NABQ v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 3 at 291, after citing authorities which suggest that caution should be exercised before placing significance on unsatisfactory aspects of an airport interview:

    It can be accepted that a person at risk of persecution, if returned, and who is interviewed after a long plane journey to Australia and probably under considerable stress may be not merely fearful but confused and perhaps give wrong answers.  That is a matter which Tribunals must take into account.  It may indeed enable the different versions given by the applicant on the day of his arrival to be disregarded.

14. It is the case that his Honour did go on to suggest that it is more difficult to disregard an interview given the next day particularly if such a later interview makes no reference to what ultimately becomes an applicant’s claim, but in this case it is notable that the applicant has, from the submission of 3 April 2002 onwards, consistently taken issue with the accuracy of the statement provided in support of his protection visa application and that the Tribunal accepted that the applicant’s claims were not properly recorded in that statement. 

15. As to the argument by the respondent that following the recent High Court decision in MIMA v SGLB (2004) 27 ALR 12 at [43] it was clear that the Tribunal has no obligation even to inquire let alone for such an inquiry to succeed, I am not persuaded that SGLB is indeed authority for such a broad proposition. In that case the High Court was considering a claim that a Tribunal denied procedural fairness in refusing an applicant’s request that a psychiatric report be obtained (in addition to a psychologist’s assessment which had been obtained by the Tribunal). The applicant’s contention in that case was not that there was a denial of procedural fairness in failing to give him an opportunity to add to the substantive evidence in support of his claim but rather that the Tribunal erred in failing to seek a second opinion on matters about which the psychologist had reported. This contention was rejected. As Gleeson CJ stated at [19], the Tribunal had obtained a psychological assessment for a limited and reasonably specific purpose but “was not then obliged to embark upon an open-ended investigation of the respondent’s psychological condition to see whether, in any way, it might have affected his ability to put his case to best advantage”. Gummow and Hayne JJ found (at [33] and [43]) that there was no denial of procedural fairness. The Tribunal had gone to great lengths to accommodate the applicant and his concerns and there was no obligation to obtain a psychiatric report. There was evidence before that Tribunal to assist it in determining how to deal with the question of unreliability of the applicant’s evidence. While the Tribunal had power to obtain a medical report, the Migration Act did not impose any duty or obligation to do so at the request of an applicant. The specific finding that “Thus, the Tribunal is under no obligation to inquire” (at [43]) was made in the context of considering an alleged error by the trial judge in finding that the Tribunal was, before making credibility findings, under a duty to enquire as to the effects of post traumatic stress disorder on the applicant’s capacity to give evidence. What was stated by the High Court in SGLB is not inconsistent with an obligation on a Tribunal as one of the incidents of procedural fairness to clear up a disputed fact without unreasonable difficulty (see NAMO at [15]). 

1. I have also borne in mind that the tape was not actually in the possession of the Tribunal but rather the Department of Immigration, the department of the first respondent in these proceedings.  It appears from the Tribunal reasons for decision that the Tribunal member did not know whether the tape existed or not.  The interesting issue of what would be the case had it been established on the evidence before the court that the Tribunal had made clear and consistent inquiries seeking production of the tape from the Department and been met with a blanket refusal, is not before me for consideration in this case.  It might be that in such circumstances the material could not be said to be readily available, but the Tribunal’s reliance upon disputed information which could not be confirmed would then raise other issues.  It is not necessary for these issues to be determined in these proceedings.  The tape is in existence.  It cannot be said that it was not readily available.  There is insufficient evidence to enable me to determine why it was not before the Tribunal and made available to the applicant. 

2. In the particular circumstances of this case I am satisfied that by failing to either provide a copy of the tape to the applicant or at the least to verify the lack of availability of the tape the Tribunal denied the applicant procedural fairness.  While the Tribunal stated in its reason that it made some attempt to obtain the tape of the interview, I am not satisfied on the evidence before me, that it can be said to have taken the steps which could be taken without unreasonable difficulty to clarify the disputed facts.  In making findings against the applicant in the absence of that clarifying material the Tribunal failed to provide the applicant with procedural fairness in circumstances where it cannot be said that the failure to accord procedural fairness could not have affected the outcome.  As Raphael FM stated in NAMO at [15] it was possible that the tape would have confirmed the truth of some or all of the applicant’s claims about what he had actually said at his arrival interview and if it did so this may have made his evidence more plausible.  Following the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 CLR 24 it is clear that a failure to accord procedural fairness to a party may constitute jurisdictional error on the basis that the purported decision of the Tribunal would not be a decision for the purposes of the Act (see Gleeson CJ at [103]).

3. The applicant has established that there was a lack of procedural fairness constituting jurisdictional error.  Hence it is not strictly necessary to consider the other grounds relied upon.  However, the contention that the Tribunal failed to take into account relevant considerations (being the applicant’s version of events given at his initial interview as recorded on a tape of that interview) faces the difficulty that the Tribunal did not have the tape before it.  While a Tribunal is required to take into account relevant considerations in the sense of integers of the applicant’s claim (see MIMA v Yusuf (2001) 206 CLR 323 and Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244) it is not contended, nor could it be on the material before the court, that the Tribunal failed to take into account the applicant’s claims as they appeared in the material actually before the Tribunal, including the written record of the airport interview. The Tribunal took the applicant to the written record of the initial interview for the purpose of addressing issues of concern about his claims about what occurred in Turkey. I am not satisfied that in meeting the obligation to have regard to relevant considerations the Tribunal was obliged to go beyond the evidence before it and the issues that it put to the applicant and his explanations. It did have regard to the fact that the applicant took issue with the accuracy of the initial airport interview, but it did not fail to consider or deal with this claim or with aspects of the applicant’s claims both as recorded in the record of airport interview and as later claimed. This is not a case in which the Tribunal has overlooked an element of a claim (see MIMIA v SGLB (20040)0 207 ALR 12 at [43]-[44]). Nor has it been established that the Tribunal misunderstood and failed to deal with an aspect of the applicant’s case. The ‘relevant consideration’ ground of review is directed to matters that the Tribunal is bound, as a matter of jurisdiction, to have regard to (Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 323 at 395 per Mason J. It has not been established that there was an element of the applicant’s claims that was overlooked by the Tribunal or that the Tribunal misunderstood and failed to deal with an aspect of the applicant’s case. There is no basis for suggesting that any of the applicant’s claims as put in the material before the Tribunal were overlooked, as opposed to not being accepted. (cf Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088). Rather, the problem with the Tribunal decision related to its failure to clear up a contested issue as it could have done and its reliance on a disputed inconsistency in rejecting the credibility of the applicant.

4. The final ground relied on by the applicant was that the Tribunal failed to comply with s.424A of the Migration Act, in that the first and second respondents failed to provide the applicant with a copy of the tape of the applicant’s initial interview. First, the obligation under s424A is on the Tribunal not the Department. It was held by the Full Court of the Federal Court in MIMA v Al Shamry (2001) 110 FCR 27 that the word “applicant” in s.424A means applicant for review by the Tribunal and that the “application” refers to the proceedings before the Tribunal. It may be that if a Tribunal relied on a tape of an interview given by an applicant to the Department, that tape would not have been given “for the purposes of the application” within the s.424A(3)(iii) exception. However the Tribunal did not rely on the tape of the applicant’s airport interview. Hence, it cannot be said that the actual tape was information which formed the reason or part of the reason for the Tribunal’s decision within subsection 424A(1). No obligation arose under s.424A(1) in relation to the actual tape of the initial interview. Moreover, insofar as the complaint relates to the written record of the airport interview, the content of what was recorded as being said at the interview was clearly communicated to the applicant, including by letters from the delegate in March and April 2002. The substance of the information from the report of the interview was put to the applicant. Any breach would be merely a breach of the procedural requirement in s.424A(2) and not a substantive breach constituting jurisdictional error (see NAHV v MIMIA (2003) 129 FCR 214 [23]). However as the applicant has succeeded in establishing jurisdictional error on the basis considered above the relief sought should be granted.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  31 January 2005.