SZHDI v Minister for Immigration

[2007] FMCA 1595

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHDI v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1595

MIGRATION – Review of Refugee Review Tribunal decision – objection to competency – translation errors at Tribunal hearing – common law procedural fairness – country information – no failure to take into account personal circumstances – no denial of natural justice – no failure to take into account evidence of witnesses – no “illogical” reasoning on the part of the Tribunal – impermissible merits review – no jurisdictional error – objection to competency upheld – alternative delay – application dismissed.

Migration Act 1958, ss.477(1A), 477(1), 474, 477, 425, 427(7)

Ngu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 426
Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553
SZAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 312
WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507
Appellant P119/2002 v Minister for Immigration and Multicultural Affairs [2003] FCAFC 230
NACE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1088
WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Muin v Refugee Review Tribunal (2002) 190 ALR 601
W284 v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1788
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592
Kioa v West (1985) 159 CLR 550

Re Minister for Immigration and Multicultural Affairs; Ex Parte Cassim (2000) 175 ALR 209
VHAP of 2002 v Minister for Immigration and Multicultural Affairs [2004] FCAFC 82
NAVM v Minister for Immigration and Multicultural Affairs [2004] FCA 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
Re Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491
Re Refugee Review Tribunal: Ex parte Aala (2000) 204 CLR 82
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
SZGZW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 457
M206 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 24
SZGPZ v Minister for Immigration and Multicultural Affairs [2006] FCA 683

Applicant: SZHDI

First Respondent:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent:	REFUGEE REVIEW TRIBUNAL

File number: SYG 2622 of 2005

Judgment of: Nicholls FM

Hearing date: 18 May 2007

Date of last submission: 01 June 2007

Delivered at: Sydney

Delivered on: 21 September 2007

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms B Nolan

Solicitors for the Respondent: DLA Phillips Fox Lawyers

ORDERS

(1)The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.

(2)The application to this Court filed on 19 September 2006 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2622 of 2005

SZHDI

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND ANOR

Respondent

REASONS FOR JUDGMENT

1.I have before me an application filed in this Court on 19 September 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 23 January 1998 which affirmed a decision of a delegate of the respondent Minister made on 22 March 1996 to refuse the grant of a protection visa to the applicant.

2.The applicant is a citizen of Lebanon who arrived in Australia on 26 October 1994. On 18 April 1995, he made an application for a protection visa (this application and translations of the applicant’s answers in Arabic to relevant questions is reproduced in the Court Book (“CB”) at CB 1 to CB 39). The applicant was interviewed by the Minister’s delegate (CB 42), who subsequently refused the application (see CB 47 to CB 57 for the delegate’s decision record).

3.The applicant applied for review of that decision with the Tribunal on 10 April 1996 (the application is reproduced at CB 58 to CB 60). He was assisted before the Tribunal by a migration adviser (Mr T Laba Sarkis). By letter dated 1 December 1997, the applicant was advised that the Tribunal was unable to make a favourable decision on his application on what had been put before it, and invited the applicant to attend a hearing on 8 January 1998. The applicant attended on that date and gave evidence, as did two witnesses on his behalf. The Tribunal’s account of what occurred at the hearing is contained in its decision record (its decision record is reproduced in full at CB 67 to CB 77).

Claims to Protection

4.The applicant’s claims before the Tribunal were that for some years he had actively worked against Syrian forces occupying parts of Lebanon, that he had initially focussed on collecting information about the Syrians and other militias but then went on to become a member of the Lebanese Forces (LF) and worked on collecting intelligence during that time. He further claimed to have been detained by the Syrians, and that following the end of open hostilities in 1990, he became a body guard for Mr Samir Geagea, the head of the LF. His fear of returning to Lebanon was that he would be arrested by the Syrians because of his intelligence background and his connections with a former LF commander, and because he was of interest to the Lebanese authorities.

The Tribunal’s Findings

5.The Tribunal:

1)Accepted that the applicant worked for the LF collecting information on the Syrians (CB 76.3).

2)However, found that the applicant’s fears of persecution by the authorities in Lebanon were not well founded (CB 76.4).

3)Noted that apart from two days in 1985, the applicant was not further detained by the Syrians and that the indications were that he was not of interest to the Syrian or Lebanese authorities (CB 76.4).

4)Found that according to independent country information, the Syrian security presence in Lebanon was pervasive and well established (CB 76.5).

5)Found that the applicant obtained a passport and “crossed” security checking at Beirut airport without difficulty. Further, that according to information obtained from the Australian embassy at Beirut, the obtaining of a passport, and being allowed to leave the country “strongly suggested that the authorities had no interest in him”. Also, that his departure would have been prevented if he was someone who had attracted the attention of the authorities (CB 76.8).

6)Further reasoned that the applicant’s activities were confined to collecting information against the Syrians and that based on his own evidence he never went out on military operations. According to independent country information the Syrian and Lebanese authorities had “little interest in rank-and-file LF members unless they were involved in serious crimes” (CB 76.10).

7)Furthermore, that a general amnesty was declared in 1991 for crimes committed by all militias (CB 77.1).

8)Did not accept the applicant’s claim that he had received assistance from a cousin to facilitate his departure from Lebanon, and that based on information from the Australian Embassy in Beirut, his account of his departure was “highly implausible”. The fact that he passed through security systems at Beirut airport meant he was not on a “wanted list” (CB 77.4).

9)Having found that his departure from Lebanon was trouble free, and that his departure would have been noted if it was of concern, it did not accept the applicant’s claim that the authorities were looking for him after his departure, and paid visits to his home in subsequent years (CB 77.6).

10)Was not satisfied that the applicant faced a real chance of persecution should he return to Lebanon (CB 77.7).

11)In all, it was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention.

Before the Court

6.This matter was ultimately set down by a Registrar of this Court for final hearing before me on 27 February 2007. A number of adjournments for various reasons were required to facilitate the filing of evidence and relevant submissions. In addition to the Court Book, the Court has before it:

1)The application to the Court filed on 19 September 2005 which asserts the following:

“The Tribunal denied the applicant natural justice, and procedural fairness.

Particulars:

1. The Tribunal did not take into consideration the fact there were a number of translation errors, which affected the Tribunal’s understanding of my claims and its decision.

2. Country information’s were not given to me for comments.

3. The Refugee Review Tribunal’s member failed to take into consideration my personal circumstances which lead to serious persecution which made me fled the country to protect myself.

4. I reserved my right to lodge an amended application when I receive all my documents.” [Errors in Original]

2)The respondent’s notice of objection to competency filed on 4 November 2005.

3)The affidavit of Therese Quinn, a solicitor in the employ of the respondent’s solicitors made on 4 November 2005 with annexure.

4)The affidavits of 25 February 2007 and 6 March 2007 of Mr Toufic Laba Sarkis with reference to a transcript of the hearing before the Tribunal prepared by him.

5)The affidavit of Gisela Bogdan, a law clerk employed by the respondent’s solicitors made on 3 May 2007 with annexure and also with reference to the transcript of the hearing provided on behalf of the applicant. [This includes an annotated version with comments by Ms Frossine Jallak of the transcript prepared by Mr Laba Sarkis.]  

6)The affidavit of 18 May 2007 of Therese Mary Quinn, a solicitor in the employ of the respondent’s solicitors, with annexures.

7)The applicant’s written submissions filed on 6 March 2007.

8)The applicant’s further submissions filed on 25 May 2007.

9)The respondent’s written submissions filed on 21 February 2007.

10)The respondent’s further submissions of 14 May 2007.

11)The respondent’s supplementary submissions filed on 1 June 2007.  

7.In addition to the matters raised by way of the applicant’s application to the Court, the applicant also raised during the hearings conducted in this matter, additional issues such that his complaints about the Tribunal’s decision are:

1)The applicant was denied a fair hearing in that a number of errors occurred in translation at the hearing before the Tribunal which affected the Tribunal’s understanding of his claims and ultimately affected its decision.

2)Country information relied on by the Tribunal was not given to him for comment.

3)The Tribunal failed to take into consideration the applicant’s “personal circumstances” which led to “serious persecution” which precipitated his fleeing Lebanon.

4)The Tribunal denied the applicant natural justice by being bound to conclude the hearing before it by a particular time because the interpreter was only available for a limited time.

5)The Tribunal failed to take into account evidence from the applicant’s witnesses in support of his case such that this failure was an error of law. Further, in light of this, it was not open to the Tribunal to conclude that the applicant’s activities were “not of a high profile”.

8.The Minister presses:

1)The objection to competency.

2)That no jurisdictional error can be seen in the Tribunal’s decision.

3)That in any event, even if the Tribunal’s decision were found to be infected by jurisdictional error, that the relief sought should be refused on the basis of the delay in the applicant seeking relief before this Court.

Objection to competency

9.By way of notice filed in this matter on 4 November 2005, the Minister asserts that this Court has no jurisdiction to hear this application on the grounds that s.477(1A) of the Migration Act 1958 (“the Act”) provides that an application for a review must be lodged with the Court within 28 days of the notification of the decision and that the applicant had not done so as is required by that section.

10.I note that s.477(1A) of the Act was replaced on 1 December 2005 by the current version of s.477(1) by the Migration Litigation Reform Act 2005 - No. 137).  Section 477(1A) therefore remains relevant to this application and to the Minister’s notice.

11.The Tribunal’s decision was made on 23 January 1998 (CB 67 and CB 78). It was notified to the applicant by way of letter sent to his address for service (see CB 66 and CB 64) sent by registered post, and dated 23 January 1998.

12.There is no dispute between the parties as to this issue. The application to the Court was filed on 19 September 2005. It has taken some time for the matter to be set down for final hearing for reasons which nonetheless do not affect the ultimate disposition of this case before the Court. Given that the application was made prior to the introduction of s.477 of the Act, the relevant time limits for the making of such applications to the Court are those contained in s.477(1A) of the Act. That is, the application to the Court needed to have been filed within 28 days of notification of the Tribunal decision.

13.In the case of Ngu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21, the Full Federal Court upheld the decision of Nicholson J, who at first instance held that a privative clause decision (with reference to s.474 of the Act), lodged outside the time limit specified in s.477 of the Act (equivalent to s.477(1A)), was in those circumstances incompetent unless a ground of review could be made out. In determining whether the Tribunal made jurisdictional error, regard must be had to s.474 of the Act, in the way described by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 426. If the Tribunal’s decision before the Court now is a privative clause decision, then the time limit provided in s.477(1A) as it was then, would apply.

14.The issue for the Court therefore, is to determine whether the Tribunal’s decision is affected by jurisdictional error. Further, in my view, it is appropriate for the Court to consider that issue and then if necessary, to consider the issue raised at paragraph 17 of the Minister’s submissions (filed on 21 February 2007) which asserts that even if there is jurisdictional error in the decision, given the unexplained delay in the applicant bringing proceedings in this Court, that the Court should exercise the relevant discretion to refuse the relief sought.

Applicant’s Grounds and Complaints

15.The ground stated in the application asserts a denial of natural justice and procedural fairness. Three particular sets of circumstances are said to support this ground:

1)A number of translation errors occurred during the course of the hearing conducted by the Tribunal which affected the Tribunal’s understanding of the applicant’s claims and that this subsequently affected its decision.

2)Relevant country information relied on by the Tribunal was not given to the applicant for comment.

3)The Tribunal failed to take into consideration the applicant’s “personal circumstances” which led to his being persecuted.

16.A further two complaints about the Tribunal’s decision emerged during the time between hearings in this matter before the Court. By way of written submissions filed by the applicant on 6 March 2007:

“1. That the applicant was denied natural justice in that the length of time that the Tribunal provided for the hearing before it was such that the applicant was denied the opportunity of fully presenting his case.

2. That the Tribunal failed to take into account the evidence of the applicant’s witnesses.”

17.Despite opportunity, the applicant did not file any amended application. However, at the second hearing before the Court, I granted leave to the applicant to pursue these additional two matters.

Tribunal Hearing – Translation Errors

18.The applicant’s first complaint is that the Tribunal did not take into consideration a number of translation errors effected by an inadequate level of translation of the hearing before it, such that its understanding of the applicant’s claims was affected to the extent that the applicant was denied procedural fairness.

19.The applicant, through (his former agent of ten years earlier) Mr Laba Sarkis, had attempted to put before the Court what purported to be a transcript of the Tribunal hearing (with notations) by way of email sent to the Court. This document was not paginated. Subsequently, the applicant filed two affidavits of Mr Laba Sarkis, both of 6 March 2007, who affirms that he is an accredited interpreter to the standards set by the National Accreditation Authority for Translators and Interpreters (NAATI). Both affidavits referred to the transcript of the hearing prepared by him. A paginated version of this transcript was sent to the Court some time later without a covering affidavit. The Court also has before it the affidavit of Ms Bogdan, annexing a copy of the transcript of the hearing prepared by Mr Laba Sarkis with annotations and comments made by Frossine Jallak, also an interpreter in the Arabic language, tested to the relevant NAATI standard. I will use as a reference the version of the transcript (“T”) annexed to the affidavit of Ms Bogdan, as the transcript referred to in the affidavits of Mr Laba Sarkis are not paginated. Noting of course, that the version attached to the affidavit of Ms Bogdan’s is Mr Laba Sarkis’ version of the transcript with annotations made by Ms Jallak.

20.By way of written submission relevant to this complaint, the applicant says at paragraph 9 of written submissions filed on 6 March 2007:

“The interpreter was not competent in translating from Arabic to English and from English to Arabic as it can be seen from the transcript of the hearing.”

21.At the hearing before the Court, the applicant submitted that the Court should look at the errors of translation that occurred at the hearing before the Tribunal and noted by Mr Laba Sarkis. He specifically emphasised (at T3.10 to T4.1):

“The interpreter is interpreting what Mr Obeid is saying: I wasn’t there, I assumed to have them, some a number of people around”

The notation by Mr Laba Sarkis is:

“(N.B. Mr Obeid said that he wasn’t responsible for that station but the interpreter said he wasn’t there)”.

22.In all, beyond pointing to purported errors in the translation as set out by Mr Laba Sarkis, the applicant provides nothing further to support the assertion that such errors affected the Tribunal’s understanding of his evidence and claims, and the evidence of his witnesses, to the extent that the Tribunal’s decision was subsequently affected. The complaint, as put in total, was that the purported errors reveal that the interpreter was not competent in translating from Arabic to English.

23.It is trite to say that the applicant must be given a fair hearing. It is basic that the applicant should have a reasonable opportunity to present his case and to meet the case against him. Section 425 of the Act (as at the relevant time), required that the applicant be given an opportunity to appear before the Tribunal. Section 427(7) of the Act makes provision that where a person giving evidence before the Tribunal is not proficient in English the Tribunal may direct that communication proceed through an interpreter. Where the Tribunal proceeds in this fashion, it is obliged to provide a competent interpreter who in turn provides competent interpretation.

24.In the case before me, there is nothing from the applicant to argue against the competence of the interpreter provided by the Tribunal at the hearing in terms of the interpreter’s level of accreditation (as set and tested by NAATI). The issue in this case is claimed deficiency in the actual interpretation such that the applicant was denied the opportunity of a fair hearing.

25.As to what is required in this regard, I am bound and guided by such authorities as:

1)Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 (“Mahzar”) per Goldberg J, after looking at relevant authorities, said at [31]:

“These passages suggest that where the applicant appears, but is not able through the conduct of the Tribunal to give evidence or present arguments, albeit that the applicant has been invited by the Tribunal to appear, then there will be a contravention of s 425(1). I agree with the observations of Wilcox J in Xiao (par 30 above) that events subsequent to the invitation, which must remain open, are not necessarily immaterial. The invitation must not be a hollow shell or an empty gesture. If an invitation to appear is extended to an applicant, where the Tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the Tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the Tribunal. If that situation arises the Tribunal will not have fulfilled its obligation under s 425(1).”

[While the current version of s.425 of the Act refers to an invitation to a hearing, I see the remarks above as being equally applicable to the version of s.425 relevant at the time of the Tribunal’s decision, relating to the giving to the applicant the opportunity to appear before the Tribunal to give evidence.]

2)See also the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 (“SCAR”) generally at [33] to [41] but in particular at [31] approving Mahzar:

“The invitation must not be a hollow shell or an empty gesture.”

3)Similarly, if an interpreter provided by the Tribunal has interpreted in an inadequate way, there will be a breach of the common law hearing rule because the opportunity to put a case is illusory. For example, Hill J in SZAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 312 at [40], said:

“I am unaware of any decision which has considered the question of translation in the context of whether a wrong translation of material before the Tribunal could constitute jurisdictional error. It can be accepted that it is a fundamental rule of a fair hearing that an applicant before the Tribunal be afforded the opportunity of putting his or her case. I do not need to consider whether there would be any obligation on the part of the Tribunal to provide to an applicant, unable to speak English, an interpreter. If an interpreter provided by the Tribunal translated in a totally inadequate way the apparent opportunity to put a case is illusionary. In the present case an interpreter was in any event provided (see Migration Act s366C). The complaint is that the interpretation was so inadequate as to amount to a denial of procedural fairness.”

4)But not every error or problem with interpretation will amount to a denial of procedural fairness. For example, the Full Federal Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 (“WACO”) (in referring to Kenny J in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 (“Perera”) at [25]–[26]: “interpretation is not merely a mechanical exercise”), said at [66]:

“However, the requirement is not that there be a perfect translation, it suffices that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated.”

5)In Perera at [45], the Court said:

“It is not every departure from the standard of interpretation that prevents an applicant for refugee status from giving evidence before the Tribunal. The departure must relate to a matter of significance for the applicant's claim or the Tribunal's decision.”

26.The lapse in interpretation needs to involve the vital interests of the applicant and not merely some collateral or extrinsic matters. In the case of Perera (see at [28] and [41]), the Court held that the appropriate standard of interpretation before the Tribunal should include competency, precision, accuracy and impartiality on the part of the interpreter. Elements that go to incompetence such that the applicant is prevented from effectively giving evidence include the responsiveness of the interpreter to the answers asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made out, and any evident confusion in exchanges between the Tribunal and the interpreter.

27.Further, it is not enough that the applicant simply point to problems that may have occurred at the hearing (see the Full Federal Court decision of Appellant P119/2002 v Minister for Immigration and Multicultural Affairs [2003] FCAFC 230 (“Appellant P119/2002”), and in particular [17] per Mansfield and Selway JJ, where their Honours set out what an applicant would have needed to establish to demonstrate a jurisdictional error arising from inadequate translation:

“(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or

(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.”

Similarly, see also Stone J in NACE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1088 (“NACE”).

28.I note also in this regard, the Minister’s submissions (at paragraph 9 of the submissions of 14 May 2007), that the relevant question in the case before the Court now is whether the standard of interpretation by the interpreter was such that the applicant and his witnesses were prevented from giving their evidence effectively.

29.The Minister referred the Court to the observations of Ryan J (with whom Tamberlain and Middleton JJ agreed in WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 (“WALN”) at [29]:

“To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (supra) at [38]-[41]. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry see Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, at [18]. Those authorities were applied in Appellant P119 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 230 and WACO Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511, at [63]-[68].”

30.In the case before the Court now, the applicant has not particularised with any specificity the inadequacies in translation said to have resulted in he and his witnesses being unable to convey to the Tribunal their evidence, such that the Tribunal misunderstood the claims, as is alleged in the application to the Court. Simply, the applicant has referred the Court to a number of instances of what is said to be incorrect translation by the interpreter as noted by Mr Laba Sarkis

31.Relevantly, the Court has before it:

1)The transcript of the hearing before the Tribunal prepared by Mr Laba Sarkis and as annotated by him to indicate errors (“N.B”).

2)That transcript as further annotated by interpreter Ms Jallak.

3)Ms Jallak’s comments at attachment C to the affidavit of Ms Bogdan (providing comments to both what was said by the interpreter at the hearing before the Tribunal and comments on Mr Laba Sarkis’ notations).

32.With reference to the paginated transcript (“T”) version provided as an annexure to the affidavit of Ms Bogdan, which I note is, other than for handwritten amendments, identical to what has been provided by the applicant by way of Mr Laba Sarkis, and with reference to the comments of Ms Jallak, the alleged errors in translation fall within the following categories:

1)Where Mr Laba Sarkis asserts an error in translation and Ms Jallak agrees.

2)Ms Jallak agrees with Mr Laba Sarkis but adds to his notation.

3)Alleged errors asserted by Mr Laba Sarkis with which Ms Jallak does not agree.

4)Ms Jallak has noted errors or omissions not noted by Mr Laba Sarkis.

33.Ms Jallak agrees with Mr Laba Sarkis:

1)At T3.10 (Item 3):

“The interpreter is interpreting what Mr Obeid is saying: I wasn’t there, I assumed to have them some a number of people around”

(N.B. Mr Obeid said that he wasn’t responsible for that station but the interpreter said he wasn’t there)”.

i)Mr Obeid was one of the applicant’s witnesses who gave evidence on his behalf. From the material before the Court, the applicant sought to rely on the evidence of Mr Obeid to support his claim that beginning in 1985, he collected information on the Syrians on behalf of the L.F.

ii)Mr Obeid’s evidence was that he knew the applicant since 1987 and in particular came to know him because he started work in the security section when the applicant first obtained his training and that the applicant worked in a station headed by “Fawzi Al-Rassi”. This was explained by Mr Obeid to be the centre for intelligence gathering and that its mission was to obtain information in particular sections or sectors in which the “enemy” was active.

iii)It was in relation to the particular station at which the applicant was posted that Mr Obeid was reported by the interpreter as saying that he “wasn’t there”. Mr Laba Sarkis notes, and Ms Jallak agrees that Mr Obeid actually said that he “wasn’t responsible for that station”.

iv)In all, I cannot see that this error affected the Tribunal’s decision. It is clear, as set out in its “Findings and Reasons” at CB 76.4, that the Tribunal accepted that the applicant worked for the LF collecting information on the Syrians beginning in 1985. Whether Mr Obeid is reported as saying he wasn’t at the particular station where the applicant was or that he wasn’t responsible for that station, does not appear to have affected the Tribunal’s acceptance of the applicant’s claim that he worked for the LF collecting information on the Syrians at the relevant times.

2)At T7.2 (Item 6):

“The interpreter is interpreting what Mr Obeid is saying: about me knowing him, I told you how I came to know him but as for danger, because he was with Fawzi Al-Rassi, and you know his fate what happened to him, all his people who were employed with him are in the same danger.

(N.B. The interpreter didn’t say also that Mr Obeid said that all the mobolisers who worked with Mr Fawzi Al-Rassi most of them left the country because they also have danger on their lives)

And because they were mainly against the Syrian people, so they are in danger.”

i)Mr Laba Sarkis and Ms Jallack now agree that the original interpreter omitted to translate that the witness, Mr Obeid, in addition to what he is reported as saying, also said that others that worked with Mr Fawzi Al-Rassi, left the country because they were in fear of their lives.

ii)The import of the evidence was that working with Mr Fawzi Al-Rassi was dangerous, and that all those who worked with him shared Mr Fawzi Al-Rassi’s danger. The applicant was clearly included in this group.

iii)The omission is that “most of them left the country”.

iv)I cannot see that such an omission was such as to affect the Tribunal’s understanding that it was the applicant’s claim, as supported by his witness, that working with Mr Fawzi Al-Rassi put him into a dangerous situation such that he was fearful for his life. I cannot see that whether or not others in similar circumstances to the applicant left Lebanon was such as to detract from the understanding that the Tribunal would have received that working with Mr Fawzi Al-Rassi was a dangerous business.

v)In any event, whether others left the country or not, the Tribunal’s very clear finding was that the applicant in this relevant period was not of interest to the Syrians or the Lebanese authorities because apart from two days in 1985, the applicant was not again detained by the Syrians and all the indications were that he was not of interest to them or to the Lebanese authorities (CB 76.4).

34.Ms Jallak agrees with Mr Laba Sarkis but adds to his notation:

1)At T34.3 (Item 13):

“The interpreter is interpreting what the Applicant is saying: yes he drove me to the airport in his car, and he went with me inside the airport, he took the passport and the documents, and he facilitates all the paper work for me until it was time for me to depart.

(N.B. The interpreter instead of saying he took my travel bag, she said documents).”

i)Ms Jallak agrees with Mr Laba Sarkis that the interpreter used the word “documents” instead of travel bag, but adds further that both the original interpreter and Mr Laba Sarkis also “missed” the applicant saying: “nobody questioned me”.

ii)I cannot see that the interpreter’s incorrect use of the word “documents” instead of “travel bag” had any consequence let alone adverse outcome or impact given the Tribunal’s finding on the issue to which this exchange relates.

iii)The issue is that the Tribunal found that the applicant’s explanation as to how he was escorted to the airport, and through the Beirut airport security checks was “highly implausible”. Whether the applicant’s cousin whom he claimed assisted him in this departure was said to have the applicant’s “documents” instead of the applicant’s travel bag is neither here nor there.

iv)The issue for the Tribunal was whether it accepted the applicant’s claim that he was assisted by his cousin (whether the cousin carried documents or a travel bag) through the airport at a time when security was at such a heightened level, in circumstances where the Tribunal could not accept that someone such as the applicant who claimed to have been of concern to the authorities would have been able to do so.

2)At T5.1 (Item 5):

In Mr Laba Sarkis’ version:

“The interpreter is interpreting what Mr Obeid is saying: a person like him, he’s got people with him, to work with him, so that they collect information for example about the Syrian troops who are located in the north, we give them lessons teaching them about how their army is organised, how do they do their jobs etc…

(N.B. Mr Obeid also mentioned on giving lesson on how the other parties are organised, what they want from them and how they ask informations from those people)

As a person responsible of that section he’s calling it as a name Moboliser, a person who’s get…responsible of moving people, these people with him, he is in charge with them. They…he send them places to collect information to him.”

i)Plainly, the evidence given by Mr Obeid, is that in collecting information during the period 1987 to 1989, that the applicant by that time, (remembering that the applicant had commenced his information collecting activities in 1985) had become some sort of “mobiliser” or “organiser” of a small group, or section of information collectors or intelligence gathering operatives.

ii)In whatever capacity the applicant operated, either as an information gatherer or an information gatherer who was also a “mobiliser” or “organiser”, the Tribunal accepted that the applicant worked for the LF collecting information on the Syrians.

iii)But the Tribunal found that, as already stated, apart from two days in 1985, the evidence was that the applicant was not again detained, and all the indicators were that he was not of interest to the Syrians or the Lebanese authorities (CB 76.4). Further (at CB 76.9) that the applicant’s war time record was confined to collecting information against the Syrians, and that the applicant’s evidence was that he had never had occasion to use his pistol and he never went out on military operations.

iv)Given this, and in light of independent country information that the Syrian and Lebanese authorities had little interest in rank and file LF members unless they were involved in serious crime such as murder and assassination, the Tribunal found (amongst other factors) he was not at risk of harm should he return to Lebanon.

v)That the applicant was a “mobiliser” or “organiser” did not in the circumstances presented to the Tribunal make him anything more than a rank and file LF member. Certainly there was no evidence to show he was involved in serious crime such as murder and assassination.

vi)Again, this alleged incorrect translation does not detract from the applicant’s case as presented to the Tribunal, such that the Tribunal could be said to have misunderstood what the applicant was saying with consequence that its findings were the result of having been misled by inadequate translation.

3)At T15.4 (Item 8):

In Mr Laba Sarkis’ version:

“The interpreter is interpreting what Mr Wadih is saying: around fifteen. I don’t exactly how many, because during missions or assignments we usually use more or need more members, so we add to the people in their in order to finish the assignment.

(N.B. the interpreter should also mentioned that Mr Wadih also said that it depends on the mission they are assigned for, because they will compose the groups and allocate an officer on that group).”

i)Ms Jallak asserts that this notation is not “entirely complete”:

“This is what Mr Wadih said:

‘Around 15…not exact figure, because it depends on the mission itself…We might add some members to it; send a person in charge of it. If we need more members for another mission we might take some from one (mission) to the other’.

ii)Again, plainly, taking Mr Laba Sarkis’ notation and the addition to the notation made by Ms Jallak, I cannot see that there is an error in translation such that the Tribunal was misled as to what the witness, Mr Wadih, was saying. Mr Wadih (at T14 to T15) was providing evidence to the Tribunal of the structure and organisation of the LF during the time that Mr Wadih (who was a senior member of the LF) knew of the applicant whom he described as “responsible for a section of around 4, 5 people” (T15.3).

iii)That the sections may have been expanded to around 15 people during specific missions or assignments, and that the numbers fluctuated based on need, plainly does not detract from the Tribunal’s understanding of Mr Wadih’s evidence (CB 73.4). This was that Mr Wadih claimed to have been Samir Geagea’s Security Chief, that he knew the applicant in 1990, and that the applicant was one of Mr Wadih’s four or five section leaders.

iv)Whether the applicant at different times commanded four or fifteen people, is not such as to detract from the Tribunal’s finding, nor to mislead the Tribunal in making the finding that the applicant’s wartime record was confined to collecting information against the Syrians, that he never had occasion to use his pistol, never went out on military operations and that according to independent country information, Syrian and Lebanese authorities would have little interest in the applicant unless he was involved in serious crime such as murder and assassination (CB 76.9). This also is not an error in translation as contemplated by relevant authorities such as to reveal jurisdictional error in the Tribunal’s decision.

35.The following items are instances of where Mr Laba Sarkis’ assertions that the interpreter was wrong is not agreed to by Ms Jallak:

1)At T3.1 (Item 1):

In Mr Laba Sarkis’ version:

“The interpreter is interpreting what Mr Obeid is saying: yes. I am Lebanese; I use to know [applicant’s first name] from Lebanon before I arrived to Australia. [Applicant’s first name] was in the Lebanese forces, he was in the security section for a while or period of time. I use to know him since 1987. I use to see him around before 1987 but I came to know him in the security section in 1987 as he was getting his trained. The security section related to the intelligence collecting the information communication and he was getting his training period as an organiser of the communication section.

Member: as a what?

The interpreter: he mentioned the word moboliser

(N.B. At first the interpreter said organiser but then when the judge asked her she said that Mr Obeid mentioned the word moboliser).”

i)Ms Jallak asserts that Mr Laba Sarkis is wrong because the interpreter used the word “mobiliser” throughout and not the word organiser.

ii)Whether the interpreter used the word “organiser” or “mobiliser” or even “moboliser” does not detract from the meaning of what is being put to the Tribunal by the applicant’s witness, Mr Obeid. That is, that since 1987, the applicant worked for the LF collecting information.

iii)In any event, whether the applicant was said to be an “organiser” or a “mobiliser” of others in collecting this information in the sense that he organised others, I cannot see any difference to any degree of significance in these terms which are interchangeable in this context.

iv)Ultimately, and in any event, the Tribunal accepted that the applicant worked for the LF collecting information from the Syrians.

2)At T22.3 (Item 9):

In Mr Laba Sarkis’ version:

“The interpreter is interpreting what the Applicant is saying: yes. In 1985, I was having my education in Batroun, and I used to go east of Beirut in Jouniyeh and other places and we used to come also to my village, my parents village, where all Syrians are there, and I was involved in the security section with Fawzi Al-Rassi, and I collected information, and the Syrian troops felt that, sensed that I was going a lot to Beirut and coming back and I think there are a lot of people who also spread the word about me so immediately they arrested me and tortured me, they will beaten me up and that’s one of the signs, one of the scars that I had from that incident.

(N.B. The applicant said that he was beaten in the taxi which the interpreter failed to mention)”

i)Ms Jallak asserts that Mr Laba Sarkis is wrong and what the applicant said is:

“The scars of torture are still on my forehead (Nothing about a taxi).”

ii)It must be said that this is a prime example of Mr Laba Sarkis scouring the tapes of the hearing, looking for even minor errors of translation of no significance. Even on the basis that the applicant would have said that he was beaten in a taxi, and the interpreter failed to convey this, what is very clear is that what the Tribunal was told through the interpreter was that the applicant was arrested and tortured and that he was beaten and that he had scars from that incident. Whether this was obtained in a taxi or elsewhere, clearly makes absolutely no difference to the Tribunal’s understanding of the applicant’s evidence as to what had been done to him.

iii)Clearly, the Tribunal accepted that the applicant had been detained by the Syrians in 1985. Its finding however was that all the indications were that since that time, and as up to the time that the applicant left Lebanon in 1994, some nine years later, that he was not again detained by the Syrians and that he was not of interest to the Syrian or Lebanese authorities.

3)At T33 (Item 12):

In Mr Laba Sarkis’ version:

“The interpreter is interpreting what the Applicant is saying: I truly have a problem by crossing the Syrian border or the airport but the same man facilitated the both trips, and he facilitated my trip from the airport, he did all the paperwork for me.

(N.B. The interpreter failed to say that [the applicant] also said his cousin facilitated the paper works and both of his trips due to his position in the Lebanese government).”

i)Ms Jallak disagrees with Mr Laba Sarkis and claims the applicant’s statement was:

“I have a problem in getting to Syria, and I have a problem in getting to the airport, but this Captain (police officer) in his capacity as an official of the Lebanese government, facilitated my passage, arrived with me to the airport, finalised my documents and even escorted me to the airplane.”

ii)Even on the basis that Mr Laba Sarkis’ version is the accurate version of what the interpreter said, the Tribunal (with reference to its decision record at CB 77.3) plainly understood that the applicant’s claim was that his departure from Lebanon was facilitated by the assistance of his cousin who escorted him through the relevant check points and that his cousin was an official in the Lebanese security forces. The cousin’s position “in the Lebanese government” was plainly the position that he occupied in the Lebanese security forces and I cannot see any real difference between what the interpreter has conveyed to the Tribunal and what Mr Laba Sarkis now says the applicant said.

36.Ms Jallak also provides the following instances of what are said to be mistakes by the original interpreter not picked up by Mr Laba Sarkis:

1)At T3.4 (Item 2):

In Mr Laba Sarkis’ version:

“The interpreter is interpreting what Mr Obeid is saying: his got his own net…network to discover things against the enemy who was against us. The leftist people, the Syrians troops.

(N.B. it isn’t Syrian troops what Mr Obeid said but its Syrian forces)”

i)In context, I cannot distinguish any difference in meaning between the use of the word “troops” for the word “forces.

2)At T13.5 (Item 7):

In Mr Laba Sarkis’ version:

“The interpreter is interpreting what Mr Wadih is saying: in 1991 when the political party, Lebanese forces returned to be in charge and active there were only 100, and [the applicant] was one of them.

(N.B. Mr Wahid said after the war ended the Lebanese forces came back).”

(I note here that Mr Laba Sarkis has plainly incorrectly referred to the applicant’s witness, Mr Wadih as “Mr Wahid”).

i)Ms Jallak asserts that there have been omissions by both the original interpreter and by Mr Laba Sarkis to the extent that the following was also said:

“Mr Wadih: Let me continue, in 1991, after the war ended, and the Lebanese Forces returned to its political activities, there were a 100 members at the station, and [the applicant] was one of the existing members…”

ii)While the interpreter may be said to have “missed” part of this evidence, it is quite clear that the Tribunal understood Mr Wadih’s evidence to be that in 1991, Mr Wadih was in charge of about 100 bodyguards for Mr Geagea and the applicant was one of them.

iii)Further, I cannot see that there is any difference of substance between the interpreter saying on Mr Laba Sarkis’ account: Lebanese Forces “returned to be in charge”, and Mr Laba Sarkis’ claim that the witness had said “after the war ended, the Lebanese Forces came back.”

3)At T24.3 (Item 10):

In Mr Laba Sarkis’ version:

“The interpreter is interpreting what the Applicant is saying: yes, I finished 1986 and I joined another school in Jbeil.

Member: ok…between 1986 and 1991 what did you do?

(The interpreter is interpreting to the Applicant)”

i)Ms Jallak asserts:

“page 24 (10) the Transcript is wrong: ‘I joined another school in Jbeil” not in Israel’

ii)Ms Jallak’s assertion that the transcript is wrong and should say that the applicant joined another school in Jbeil, appears to be exactly what Mr Laba Sarkis said the interpreter interpreted.

iii)In any event, whether the applicant said he was at school in 1986 in Jbeil, or Israel, has not played any part in the Tribunal’s reasons, nor does it appear to be any significant part of the applicant’s claims to fear persecution.

4)At T27.9 (Item 11):

Mr Laba Sarkis’ version:

“The interpreter is interpreting what the Applicant is saying: I did not have anything to do with the military section my work was in the information.

(N.B. the interpreter instead of saying that the applicant job was only in the security centre she said that his work was in the information)”

i)Ms Jallak comments:

“The interpreter said: ‘…my work was in the information…’, The checker said, ‘…the applicant job was only in the security centre…’. The correct translation should be: ‘Security Sector’.”

ii)Even on Mr Laba Sarkis’ version, that is, even if what the interpreter told the Tribunal what the applicant was saying was that his job was “in the information” area, and should have said that the job was “in the security centre”, this does not affect the Tribunal’s understanding that at that relevant time the applicant was confined to collecting information, that is, information of an intelligence nature against the Syrians. A plain reading of the transcript at T25 to T27 reveals that the applicant had been previously interpreted as saying that he was “in the security section and the intelligence”.

5)At T35.1 (Item 14):

Mr Laba Sarkis’ version:

“The interpreter is interpreting what the Applicant is saying: Fawzi Al-Rassi was the official officer for us in north Lebanon in the international section. Of course his rank is higher than mine as an official officer. As for the church bombing that Fawzi Al-Rassi was accused of, the whole of the accusation it was acquitted, and while he was in prison, they did not torture him because of the church bombing, otherwise they could’ve tortured the rest of the people, but they tortured him because he was responsible of the international intelligence that the Syrian people were involved in. a lot of people were arrested like Charbel Abi_Aal and other people and they would say to them: this…that the same thing will happen to you if you don’t tell us…see what happened to Fawzi Al-Rassi the same thing will happened to you”

i)Ms Jallak reports that the original interpreter continually referred to “international intelligence section” while the term used was “foreign intelligence section”.

ii)This difference is not a difference of substance in what the applicant was seeking to convey to the Tribunal. Nothing turns on the difference between “international” and “foreign”.

6)T4.8 (Item 4):

In Mr Laba Sarkis’ version:

“The interpreter is interpreting what Mr Obeid is saying: we use…I use to give instructions, teached them how to move or make this network mobile in a way that can connect the information from the people.

(N.B. Mr Obeid said also that the course ran for ten days, the interpreter didn’t mention it).”

i)Ms Jallak reports the following:

“Mr Obeid said: ‘We were three people running the course. I used to give them certain subjects, and there were two other people who were giving them…(subjects)…

The use of the word ‘instructions’ by the interpreter was not accurate.

Member: In what? (instructions)

Interpreter (in Arabic): What instructions did you use to give them.

Mr Obeid: ‘the course was for a period of ten days…the way of mobilising the network…I mean the members that they had in the other area who would get the information from them.

THE CHECKER MENTIONED THAT THE COURSE RAN FOR TEN DAYS BUT MISSED THE OTHER PART (AS ABOVE).”

ii)Ms Jallak’s assertion is that Mr Laba Sarkis’ presentation that the use of the word “instructions” by the original interpreter was inaccurate. The accurate word was “subjects”. Whether the interpreter used the word “instructions” or “subjects”, I cannot see that the meaning that the witness Mr Obeid was seeking to convey was affected.

iii)In any event, I note that Mr Laba Sarkis agrees with the original translator that what was said was “instructions”.

iv)But even if Ms Jallak is correct, what Mr Obeid was seeking to convey, was that there had been a training course in 1987 and another in 1989 and that the courses aimed to train people to improve their collection of information, and whether the word used was that during the training course he gave people “subjects” or “instructions”, plainly makes no difference to the meaning that he was seeking to convey and as ultimately understood by the Tribunal (see CB 73.3).

v)Mr Laba Sarkis also complains by way of his notation that the witness said that the course ran for ten days but that the interpreter did not translate this. Mr Laba Sarkis’ claim is difficult to understand as the Tribunal plainly reported in its decision record Mr Obeid as saying (at CB 73.3):

“He had seen the applicant during a ten day training course.”

37.The relevant material before the Court, in particular, the Tribunal’s decision record, Mr Laba Sarkis’ commentary on the transcript of the hearing and Ms Jallak’s commentary on the transcript of the hearing, does not reveal any breach of the Tribunal’s obligation in relation to procedural fairness in the conduct of this review.

38.First, there is nothing before the Court to show that the interpreter used at the hearing before the Tribunal was not competent in the performance of her duty. Second, and in particular, in relation to the applicant’s complaint before this Court, it is important to note that the applicant has merely pointed to what he says (through Mr Laba Sarkis), are inaccuracies in the translation. It is on this basis that the applicant complains that the interpreter was not competent in translating in Arabic to English and in English to Arabic, purely relying on these claimed inaccuracies.

39.In my view, any plain reading of the transcript provided by Mr Laba Sarkis, his notations and the comments of Ms Jallak reveals that the applicant’s complaint that the interpreter was not competent in the performance of her duty, or that the interpretation was inadequate is not made out. As submitted by the Minister and as set out above, the principles in relation to the standard of interpretation required in the context of a hearing before the Tribunal are well established. Importantly, there is no requirement that there be a “perfect translation”. What is required is that the translation is “sufficiently accurate” so that the idea or the concept that the speaker is seeking to communicate is so communicated (Perera and WACO).

40.The applicant has put forward what he says are lapses in interpretation and thereby claims that a breach of the applicable principles of procedural fairness are made out. I do not understand this to be the applicable standard as derived from the authorities as set out above. As I have stated above, it is not enough that the applicant simply pointed to problems that may have occurred at the hearing (Appellant P119/2002 in particular at [17] and see also NACE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1088). This is all that the applicant has done in this case.

41.Plainly, the claimed lapses in interpretation need to involve something more than what can only be described as the minor errors of translation with at best little, although mostly, no consequence, to the conduct of the hearing before the Tribunal. See reference to WALN at [29] above.

42.None of the instances of errors in translation claimed by the applicant (and indeed, none of the errors noted by Ms Jallak) are such as could be said that the applicant and his two witnesses were prevented from giving their evidence effectively. Critically, the issue is whether the applicant was given the opportunity, that is, a fair opportunity to present his case to the Tribunal both in person and through his two witnesses. Plainly, as was said in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [14], procedural fairness “is directed at the obligation to give a fair hearing” (see also In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 (“Lam”), in particular Gleeson CJ at [37]: “fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice”). As the Minister submits, there is a distinction between the fairness of the procedure and the fairness of the decision produced by the procedure (with reference to McHugh and Gummow JJ in Lam at [105]).

43.With this in mind, it is clear that the applicant was invited to, and did attend a hearing before the Tribunal. I agree with Ms Nolan that the invitation was not a “hollow shell” or “empty gesture” (with reference to Mazhar at [31]). Rather, it was “a real and genuine invitation” (with reference to SCAR). Ultimately, I also agree with Ms Nolan that the inaccuracies in translation noted in the version of the transcript provided by Mr Laba Sarkis, and indeed, as expanded in the comments made by Ms Jallak, are not such that the applicant was “unable adequately to give evidence and present argument and give evidence to the Tribunal” (Mahzar at [31]). I cannot see that the claimed incidences of errors in translation were critical in any way to the presentation of the applicant’s case. There is nothing to show, nor does the applicant now submit, that the interpreter misled him or indeed, influenced the Tribunal in its reasons in a way that resulted from the mistranslation.

44.On any plain reading of the material before the Court now, the Tribunal understood the applicant’s claims as put by the applicant (in the sense as further explained by Mr Laba Sarkis’ notations to the transcript), and I cannot see that the Tribunal was influenced by any such claimed inaccuracies in the translation. As the Minister submits, this is not a situation where the applicant believed certain things as a result of the hearing and hence failed to take any action (Muin v Refugee Review Tribunal (2002) 190 ALR 601). Nor has the applicant pointed to any reliance to his disadvantage on any matter arising out of what is said to be the errors in translation.

45.Nor do the exchanges as recorded in the transcript provided by Mr Laba Sarkis (taking into account both his notations of claimed mistranslation and those subsequently pointed to by Ms Jallak), reveal that the responsiveness and coherence of what was being said was adversely affected. There is for the greater part, consistency between the questions and subsequent answers given by the applicant and his two witnesses. I cannot see that there is any evidence of confusion in the exchanges between the Tribunal and the applicant and his witnesses through the interpreter.

46.While, for example, at T4.9, the Tribunal states to one of the applicant’s witnesses, Mr Obeid, that the Tribunal did not understand what he meant in answer to one of its questions, in the context of what leads up to this part of the transcript, there is nothing to indicate the difficulty was due to any deficiency in the translation, but rather a difficulty with the somewhat incomprehensible evidence given by the witness. This was: “….teached them how to move or to make this network mobile in a way that can connect the information from the people” – Mr Laba Sarkis’ notation on this part of the transcript does not take issue with this, but asserts that the interpreter failed to add additional evidence, which even had it been interpreted as put by Mr Laba Sarkis, would not have added to the sense of what the applicant was saying. In all therefore, the Tribunal’s subsequent comment that it did not understand the witness does not arise from any deficiency in interpretation. (A similar example is found at T32.9).

47.The claimed errors in the interpretation provided by the interpreter at the hearing before the Tribunal even on the basis of accepting that such errors occurred reveal that the translation was not always literal. But they do not reveal that they prevented the applicant (and his witnesses) from putting the applicant’s case such that the Tribunal was not able to understand the idea that the witnesses or the applicant were seeking to convey. Nor do they reveal that the applicant or the witnesses had any such difficulty.  

48.I also note that while not determinative of this issue, no complaint was made by the applicant or his witnesses at the hearing of any difficulties with the interpreter, either in understanding the interpreter, or the interpreter having any difficulties in understanding the applicant and the witnesses. Even further, the following is transcribed by Mr Laba Sarkis at T8.10:

“Member: so having…you having heard what…are you having any trouble Ms Najah? [Presumably the interpreter].

(The interpreter is interpreting to the Applicant)

The applicant: No

Member: sorry…are we communicating quite clearly here?

(The interpreter is interpreting to the Applicant)

Member: I think about [‘if we keep our’: - Ms Jallak’s annotation] exchanges short and simple we can make fast progress.’”

49.The applicant, when asked about any difficulties with the interpreter, plainly answered in the negative. Even when pressed, nothing negative about the level of interpretation was put.

50.Nor did the applicant, between the time of the hearing on 8 January 1998 and the time of the Tribunal making its decision on 23 January 1998, make any complaint to the Tribunal on the standard of interpretation provided. I note further, that Mr Laba Sarkis who has helpfully provided the transcript, and the notations to the Tribunal hearing now, represented the applicant before the Tribunal (see the application for review at CB 58). No complaint appears to have been made to the Tribunal by Mr Laba Sarkis on the applicant’s behalf at the relevant time in this regard either.

51.Further, and separately, I cannot see that the Tribunal’s conclusions were adversely affected by any of the instances of claimed mistranslation or omission. The applicant claimed to have been active for many years as a member of the LF collecting information on the Syrians and that he had come to the attention of the Syrian forces in Lebanon and the Lebanese authorities such that he feared persecution on return to Lebanon for a Refugees Convention reason. The Tribunal’s “Findings and Reasons” reveal that it well understood this claim. It rejected the latter part of the claim for the reasons given. Further, the Tribunal had difficulty in accepting the applicant’s account of how he was able to leave Lebanon. In particular, it found his account of being able to get through airport security checks was “highly implausible”. None of these findings can be said to have derived from, or even to have been adversely influenced by, any of the instances of mistranslation now pointed to by the applicant, either each on their own or even taken as a group. Importantly, as the Minister submits, there is nothing before the Court now to support a conclusion that the Tribunal would have come to a different decision in the absence of such claimed errors, or that it viewed the plausibility or credibility of the applicant’s claims differently (this is with reference to W284 v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1788).

52.In all therefore, I cannot see that the applicant’s complaint of a denial of procedural fairness in terms of his being denied a fair hearing in breach of the Tribunal’s obligation as it is claimed to arise from instances of mistranslation or errors in interpretation is made out.

Procedural Fairness – Country Information

53.The applicant’s second particular in support of the ground asserting a denial of natural justice and procedural fairness in his application, is that the Tribunal did not give him relevant country information (presumably the country information on which it relied) to him for comment.

54.No particulars are provided in the application. However, in written submissions filed on 25 May 2007, the applicant refers to specific documents which he said the Tribunal relied on in making findings adverse to him:

1)“DFAT Cable DM42741”

2)“DFAT Cable Beirut BI13589”

3)“DFAT Cable Beirut BI12291”

4)“DFAT Cable Beirut BI12221”

55.These appear to be documents referred to by the Tribunal in its decision record as reproduced at CB 75 under the heading of “persecution of LF members”. The Tribunal records as follows:

1)“According to the Australian Embassy in Damascus, there has been no obvious detention of persons simply for being members of LF (DFAT Cable DM 42741, ‘Refugee Review Tribunal – Information Request’, 21 August 1994).”

2)“According to the Australian Embassy in Beirut, since the imprisonment of Geagea, interest in the LF by the Lebanese authorities has waned: DFAT Cable, Beirut, BI13589, ‘Lebanon: Lebanese Armed Forces: CIS Request LBN4670’, 15 October 1997’.”  

3)“The security forces are not pursuing the rank and file: DFAT Cable, Beirut B12291, ‘Lebanon: Treatment of Former Lebanese Forces Members - CIS Information Request No LBN3935’, 27 November 1996.

4)“It was considered most unlikely that the Syrians would actively pursue individuals whom they regard as low-level offenders: DFAT Cable, Beirut BI2221, ‘Lebanon – Anti-Syrian Activity – CIS Information Request No. LBN3894’, 11 November 1996.

56.In written submissions the applicant also appears to complain that the Tribunal relied on the following assertion contained in other documents however, also set out at CB 75:

“The Australian Embassy reported that it was not aware of any credible allegations of torture against LF members since 1994: DFAT Cable, Beirut, BI13589, ‘Lebanon: Lebanese Armed Forces: CIS Request LBN4670’, 15 October 1997.”

57.The applicant also complains of the following information not necessarily referred to at CB 75, but subsequently at CB 76 and CB 77.

1. “According to the Australian Embassy in Beirut, the fact that a person applied for and received a passport, and was allowed to leave the country, strongly suggests that the authorities had no interest in him. They would certainly have been in a position to prevent the departure of someone who had attracted their attention: DFAT Cable Beirut B13375, ‘Lebanon: Anti-Military Behaviour – CIS Request LBN 4313’ 13 August 1997”

2. “The fact that a person passed through the security system at Beirut airport means they are not on a wanted list: DFAT Cable, Beirut, B13589, ‘Lebanon: Lebanese Armed Forces: CIS Request LBN4670’, 15 October 1997.

3. The applicant complains that in relation to the above, the Tribunal made adverse findings:

4. It did not accept the applicant’s claim that he enlisted the assistance of his cousin, who was an official in the Lebanese Security Forces to escort him to Syria to facilitate his departure from Beirut airport.

5. It found that the applicant was not on a wanted list held by the authorities in Lebanon.

6. It was not satisfied that the applicant faced a real chance of persecution if he were to return to Lebanon.

7. The applicant’s complaint is that in breach of the common law rules of procedural fairness, the Tribunal did not provide him with any of these documents, or put the substance of any of these documents, or the assertions relied upon by the Tribunal to him, or indeed inform him that the Tribunal would rely on these documents, and nor did it give him the opportunity to respond to the assertions in or derived from these documents.

8. It is clear that the Tribunal has an obligation to give an applicant an opportunity to put his or her case and that this requires of it to raise plainly with an applicant the critical issues on which the disposition of the application might depend. Plainly, so that the applicant may have an opportunity of being heard on these issues. The High Court has recently in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 reinforced this obligation in relation to hearings pursuant to s.425 of the Act (nothing turns in this regard on the different wording of s.425 as it applied, at the relevant time in relation to the decision currently before the Court).

9. As Ms Nolan submits (in the written submissions of 11 May 2007) with reference to Kioa v West (1985) 159 CLR 550 at 582 per Mason J, underlying the obligation to give an applicant affected by the decision an opportunity to be heard, is the entitlement of the applicant to know the case sought to be made against them and therefore to be given an opportunity to reply to it.

   1.The applicant’s complaint under this particular is not necessarily that an issue was not raised with him and brought to his attention but specifically, that the actual text of the documents was not put to him in such circumstances that he would be given an opportunity to respond to what was in the documents, or in the alternative, that the substance of any of the assertions contained in the documents and relied on by the Tribunal was not put to him.

   62.

   1.Generally, the starting point should be that where information is critical to the disposition of the applicant’s claims before the Tribunal, and the applicant is not on notice of the issues raised by the information, then such information should be given to the applicant. However, I do not see that the rules of procedural fairness at general law required the Tribunal to reveal to the applicant that it intended to rely on information that was in the public domain or information of which the applicant should have been aware (Re: Minister for Immigration and Multicultural Affairs, Ex Parte Cassim (2000) 175 ALR 209 and see also VHAP of 2002 v Minister for Immigration and Multicultural Affairs[2004] FCAFC 82 (“VHAP”) per Allsop J at [30], Gyles and Conti JJ agreeing). Further, fairness does not require provision of specific country information even where relevant, provided that the issue of concern was raised and the applicant had the opportunity to put his case. Nor, dealing specifically with one aspect of the applicant’s complaint, does procedural fairness generally require the actual text or actual document to be disclosed. What is of importance is that where information is critical to the decision made by the Tribunal, the substance of the information is to be conveyed or shown so that the applicant may have put arguments about its relevance or indeed to have had the opportunity to have put other material in support of his claims to the Tribunal to counter the information relied on by the Tribunal (see in particular NAVM v Minister for Immigration and Multicultural Affairs [2004] FCA 99 at [33]).

   63.

   1.In relation to the specific country information which the applicant claims was not put to him, such information is relevant to two issues which were determinative in the Tribunal’s affirming the decision under review:

10. 1)Information relating to the attitude and interest of Syrian and Lebanese authorities towards LF members and action taken by them against such members and in what circumstances such action was taken.

    2)Information relating to the applicant’s departure from Lebanon both in terms of his generally being allowed to leave the country and in relation to the applicant’s issue that he was on a wanted list or that he was of interest to the authorities.

    65.Both issues, and relevant country information relating to those issues, were part of the delegate’s consideration as recorded and expressed in the delegate’s decision record. The delegate set out specific documents from which the country information was drawn (CB 51). Further, some extracts from these documents were set out (CB 55). The delegate’s consideration as reproduced at CB 55 and CB 56 reveals:

    1)The delegate made specific reference (CB 56.1) to information available to her regarding the minority of LF members who were detained for alleged involvement in capital crime and that there had been no obvious detention of persons simply for being members of LF. Further, the delegate made reference to country information that referred to a lack of knowledge of other LF members who had been taken into custody solely because they were known to support the LF. This referred to the time after the arrest of Geagea, and to those members of the LF who were detained in April 1994, and revealed most were released without charge after a few months, and only those facing “specific criminal charges were held in custody to stand trial”. Further (CB 56.4), that given that the applicant’s connection to the security section of the LF was only that of “a soldier following orders and providing information on the opposition forces”, and given the information that also indicated that there had been no further arrests of members of the LF since the arrest of Geagea and several others, that the applicant did not face a real chance of being detained on return to Lebanon either by the Syrian or Lebanese authorities due to his membership of the LF.

    2)The delegate also made specific reference (at CB 56.3) to information available to her that indicated “that no one wanted by authorities would be able to depart Lebanon due to security checking at both air and sea ports. [Although I note that the specific document is not recorded – see references to “CB 81” and the list at CB 51.]

    1.That such information came from additional, or different sources

11. 1.

12. 66.which were before the Tribunal, does not detract from the critical issue that the applicant would have been aware of, that is, that there was independent country information available to the Tribunal following the delegate’s decision that variously related to the interest of Syrian and Lebanese authorities in members of the LF including those who worked for the intelligence units of the LF and information relating to the ease or otherwise with which those of interest to the authorities or others could leave Lebanon. In any event, while the Tribunal made reference to a far greater number of country source materials than the delegate, on the issues determinative of the Tribunal’s decision, to a considerable extent, the Tribunal relied on more recent information from the same authorities as were before the delegate. The delegate’s decision was made in March 1996. The Tribunal’s decision was made in January 1998. In relation to the persecution of LF members and their departure from Beirut, the delegate referred to various “DFAT” (“Department of Foreign Affairs and Trade”) cables of 1994 and 1995, on an Amnesty International Report (on Lebanon) of 1995, and on an information document from the Canadian Immigration and Refugee Board of July 1995 (see CB 51). In relation to the same issues, the Tribunal referred to various DFAT Cables (see CB 75 to CB 77) of closer proximity to the date of its decision, to an Amnesty International Report of October 1997 (CB 77.2) and to a Canadian Immigration and Refugee Board report of August 1996 (CB 76.5).

    67.I note further, that the applicant attended at an interview with the delegate (see CB 42 and CB 43, the affidavit of Ms Quinn of 18 May 2007 – paragraph 2 and Annexure “A”, and the Tribunal’s understanding of what occurred at the interview with the delegate as set out in its decision record at CB 70.8 to CB 72.1).

    68.The material before the Court reveals that the issues of the level of interest in the applicant by the Syrian and Lebanese authorities and the issue of passing through security checkpoints, particularly at Beirut airport were discussed with the applicant (see CB 71.6 to CB 72.1 and Annexure “A” to the affidavit of Ms Quinn of 18 May 2007 at page 65.7 to page 60.2 – these reflect folio page numbers from the Department of Immigration and Citizenship file).

    69.Country information relevant to these issues was also discussed. On “exit procedures” see page 54.9 of Annexure “A” to the affidavit of Ms Quinn and page 63.1: “Info on exit. It indicates that anyone who is wanted by Lebanese authorities would be unable to depart through Beirut airport because of security procedures”. I also note that this was also discussed in the context of his being of interest to the Syrians as well as the Lebanese authorities: see pages 65.6 to 64.10 of the affidavit of Ms Quinn. The Tribunal summarised this part of the delegate’s interview (at CB 71.7):

    “The applicant claimed that he was always working from place to place. When asked, he said he had no trouble passing through checkpoints in Lebanon. When it was put to him that if he was not stopped at the checkpoints then he could not have been on a wanted list, he said he avoided the checkpoints. He said he had no trouble getting through Beirut airport because…a relative, had assisted…”

    70.On the issue of being of interest to the Syrian and Lebanese authorities and relevant country information see also pages 62 to 60.2 and pages 56 to 55.2. The Tribunal’s report on the interview with the delegate relevantly shows (at CB 71.8):

    “When asked why he would be sought by the authorities in Lebanon when independent country evidence indicated that there had been an amnesty for civil war crimes and that only those charged with serious crimes were at risk of arrest, the applicant said he was more than an LF sympathiser.”

    71.The applicant has not challenged, by way of any evidence, the Tribunal’s understanding of what occurred at the interview with the delegate, nor has he similarly challenged the matters set out at Annexure “A” of the affidavit of Ms Quinn. On the material before the Court, the applicant would have gone to the hearing before the Tribunal knowing that the determinative issues in the delegate’s decision (which of course was the subject of the review before the Tribunal) were the view taken of his activities in Lebanon and the country information relied upon which led to the finding that he would not be of interest on return to either the Syrian or Lebanese authorities and that in relation to his departure through Beirut airport, there was information available that no one wanted by the authorities would be able to depart Lebanon due to security checking.

    72.Further, at the hearing before it, the Tribunal specifically raised with the applicant (T35.3) independent country information which the Tribunal said was mentioned in the departmental hearing that the Lebanese army and the Syrian forces were only interested in LF members who had committed serious crimes like murder and assassination.

    73.In all, I am guided, and indeed bound, by what the Full Federal Court said in VHAP. In particular, I note submissions of 1 June 2007 drafted by Ms Nolan with reference to [27]-[30] per Allsop J (with which Gyles and Conti JJ agreed). At [27]-[30] of VHAP, Allsop J said of natural justice in this context: 

    “Natural justice and the analysis of whether, in any case, it was afforded is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.

    Natural justice is ultimately a question of fairness. The appellant here came to the Tribunal armed with her material about her country of origin in order to persuade the Tribunal to reach a state of satisfaction about her, China, and her future: that she had a well-founded fear of persecution for a Convention reason should she be required to return to China. In order to perform the task required of it by ss 36 and 65 of the Migration Act 1958, the Tribunal was required to inform and educate itself about China generally, and about aspects of Chinese life and affairs pertinent to the appellant’s claims. In so analysing that material the Tribunal might form a view about the appellant or her version of events, which fairness dictated, must be raised. That was done here. The Tribunal will often have a store of experience and knowledge about the country in question without the need for specific reference to material. Sometimes, as here, it will reach for specific material for assistance. In doing so it was only informing itself of matters against which to assess the claims of the appellant. If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be of relevance.

    The material to which we were taken was not such as to be required to be provided to the appellant. The appellant had an opportunity to persuade the Tribunal of her claims. The Tribunal raised with her issues of concern, which in the end were important. Fairness was afforded.

    The kinds of consideration which led the primary judge confidently to apply Stead, and which were an accurate assessment of the material, seem to me to reinforce the conclusion that there was no breach of the rules of natural justice. At [18] his Honour said:

    ...Most of the information contained in the documents relied on was uncontroversial, in many respects in the public domain, and much of it was likely to be known to the applicant. Secondly, even if I am wrong on the first point, it is difficult to see how the applicant could ever be in the position where she could controvert the information, if any of it was controversial. ...”

    74.I agree with submissions made by Ms Nolan that, with respect, Allsop J’s reasoning in VHAP is the preferred approach to be taken on the issue of the Tribunal’s failure to provide the actual text of the subject country information in the case before the Court now. As already set out above, the applicant was aware that country information existed as it related to the attitude of the Syrian and the Lebanese authorities to former members of the LF, and the circumstances in which such members would have been of interest to the authorities and further in this regard, the delegate had specifically found that he was not of interest to them. Further, he would have known of the independent country information that no one who was wanted by the authorities would be able to depart Lebanon due to security checking at all ports including airports.

    75.In one particular, it may be said (as Ms Nolan submitted in accord with the reasoning of Finkelstein J in VHAP at first instance) that in relation to the Tribunal’s finding, and its reliance on independent country information for this finding: “The fact that a person passed through the security system at Beirut airport means they are not on a wanted list…” (CB 77.4), that this information was possibly of a greater specificity than the information already known to the applicant by way of the delegate’s decision, that is, that the authorities would have been in a position to prevent the departure from Lebanon by way of a wanted list of someone who had attracted their attention.

    76.The applicant claimed at the interview with the delegate that he had no trouble getting through Beirut airport because a relative had assisted him by preparing his relevant papers, shielding him from questioning and escorting him to the plane (CB 71.8. See also page 63 of annexure “A” to the affidavit of Ms Quinn of 18 May 2007). This explanation as to how he was able, while claiming to have been wanted by or of interest to the Lebanese and Syrian authorities, to have been able to depart Lebanon was pressed before the Tribunal. The Tribunal rejected this explanation because it found it “highly implausible”. It specifically found it so because it said “perpetrators” faced severe punishment if caught, and in any event, it was considered difficult to evade security controls at the airport. Neither of these bases of the Tribunal’s finding are disputed by the applicant.

    77.I do not see the Tribunal’s subsequent statement “that a person passed through security system at Beirut airport” meant that they were “not on a wanted list” as being a reason for the finding of implausibility of the applicant’s account. Rather, this subsequent finding flows from the finding of implausibility of the applicant’s account and confirmed what it had previously found, which was based on information already known to the applicant, namely, that as a former member of LF (albeit one who worked on collecting intelligence information), the applicant was of such “rank and file” level that he was not of interest to the authorities and had not been involved in serious crimes to have made him of interest and that no one of interest to the authorities would be able to depart Lebanon due to security checking such that he would not have been on a “wanted list”.

    78.The applicant’s complaint now is that the Tribunal was wrong in rejecting his claim as being highly implausible as to the manner in which he left Lebanon. The applicant complains that the Tribunal relied on “wrong information” in reaching this finding. Whether the information was “wrong” or not, the fact remains that the applicant knew that there was information available (CB 56.3) that indicated that “no one wanted by authorities would have been able to depart Lebanon due to security checking at both air and seaports”. Knowing this, the applicant gave his account of his departure.

    79.The Tribunal’s statement must be seen in light of the totality of the applicant’s presentation to both the delegate and the Tribunal, and specifically what had been found by the delegate on the information available. The applicant would have known, that even in the circumstances of his claimed method of departure, there was information before the Tribunal that indicated that he would not have been able to pass through the security check points had he been of interest, that is, “wanted” by the authorities. That the Tribunal made reference to information about a “wanted list” does not detract from the situation that the applicant knew of the existence and significance of information (on which the Tribunal based its finding of implausibility of his account) relating to his ability to pass through Beirut airport.

    80.The applicant seeks to rely on (at paragraph 15 of his written submissions of 25 May 2007):

    “WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 (15 August 2000) the Court held at [58]:

    ‘There can be a denial of natural justice where a decision maker makes a finding on an important issue in a case without notice that the issue is the subject of any dispute and where the party affected adversely by that finding is not given an opportunity to be heard. That is because so to do will itself be unfair. It will not be necessary for the party alleging unfairness to put before the court the evidence which he would have presented had there not been a miscarriage of justice. It is sufficient in such a case that the party has not been afforded an opportunity to put his or her case. Only where the case is one where it can be shown that the appellant could not, even if given the opportunity to do so, affect the outcome would it be held that there was no denial of procedural fairness. If the possibility exists that the appellant, if given the opportunity might be able to make submissions or call evidence which could affect the outcome the appellant will not fail merely because the appellant has not proved that the submissions or evidence would affect the outcome.’”

    81.The applicant plainly was on notice that there was information available to the relevant decision makers that no one wanted by the authorities would be able to depart Lebanon through any port due to security checking. The applicant gave an explanation as to how he was able to achieve this in spite of this information. Other than his own explanation, there was nothing else to support his version of how he was able to depart uninhibited in light of information that said such a departure was not possible given security checking. I agree with Ms Nolan, and I cannot see how even if the specific DFAT cable (Beirut, BI3589), had been put to the applicant, that his explanation as to how he was able to pass through security checking could have differed. His explanation for the unhindered departure still would have remained “highly implausible” as the existence of a specific “wanted list” was not part of that finding.

    82.That the applicant now puts forward what he says is independent country information that supports his claim (see the pages numbered 1 to 4 and “A”, “B”, “C” attached to the applicant’s written submissions of 6 March 2007), does not assist the applicant. Plainly, for the most part, these documents refer to events in Lebanon after 23 January 1998 which is of course, the date of the Tribunal’s decision. Nor for that matter, is there anything in these documents to show any contradiction in any material particular to the information relied on by the Tribunal at the time of its decision.  

    83.In all therefore, (even as against what was said in WACO), the applicant has not shown that there has been a denial of procedural even relating to the issue of country information.

    Procedural Fairness – Failure to Take into Account Personal Circumstances

    84.The applicant’s third particular in support of the ground of a denial of procedural fairness is that the Tribunal failed to take into consideration the applicant’s personal circumstances which led to “serious persecution” which forced him to flee Lebanon. The complaint also is not particularised in the application. However, in subsequent submissions (see paragraph 7 of written submissions filed on 6 March 2007), the applicant complains that the Tribunal was made of aware of his connection with “leaders”, presumably of the LF who were wanted by the authorities, and “ignored to understand my well-founded fear of persecution”. The applicant says the Tribunal’s reasoning was “totally wrong” when it said that Syrian and Lebanese authorities had little interest in rank and file LF members unless they were involved in serious crimes such as murder and assassination.

    85.To the extent that this is a complaint that the Tribunal failed to understand the applicant’s claims to be in danger of harm as put by the applicant, then it is clear that the Tribunal accepted that the applicant had been a member of the LF and that he had worked since the beginning of 1985 in collecting information for the LF. The Tribunal further understood, and accepted, that he worked as a bodyguard for Samir Geagea up until 1984 (CB 76.4). That the Tribunal subsequently accepted independent country information that the Syrian and Lebanese authorities had little interest in “rank and file” LF members and that the applicant’s activities did not rise above such a description was a finding that was open to the Tribunal. As set out above, this independent country information was plainly before the delegate, and featured prominently in the delegate’s reason for refusing the protection visa. If there was information to contradict that information, then it was clearly open to the applicant to have put such information before the Tribunal. Further, on what the applicant had said, it was clearly open to the Tribunal to find that the applicant had not been detained apart from two days in 1985 by the Syrian authorities and that his “wartime record” was confined to collecting information against the Syrians.

    86.The transcript of the hearing provided by Mr Laba Sarkis, reveals that the Tribunal put to the applicant that there was independent country information before the delegate and that was also before it, that the Lebanese army and the Syrian forces were only interested in those who had committed very serious crimes like murder and assassination.

    87.Plainly, the applicant was given the opportunity to respond to this information. That the applicant does not agree (“totally wrong”) with this information, and the Tribunal’s use of it, does not assist in showing jurisdictional error on the part of the Tribunal. Plainly, the finding made by the Tribunal was open to it on what was before it. In all the circumstances, I cannot see that the Tribunal failed to understand the claim that the authorities had an interest in those who worked for the intelligence service of the LF. The Tribunal understood and accepted that this is what the applicant had done, but found, that given other relevant circumstances, and given that his activities were on his own evidence confined to collecting information, or that he never had occasion to use his pistol or to go out on military operations, that this would place him in the “rank and file” of LF members and as such, the applicant would be someone in whom the Lebanese and Syrian authorities would have “little interest”. In all therefore, I agree with Ms Nolan that this is an attempt by the applicant now to seek further merits review of his claims, an avenue of appeal not open to the applicant before this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

    Additional Complaints

    88.In written submissions filed on 6 March 2007, and before the second hearing of this matter before this Court, the applicant also raised two additional complaints. I note that despite opportunity, the applicant has not filed an amended application in this matter but nonetheless, as he appeared unrepresented before this Court, I did consider these complaints. The complaints were, namely, that the applicant was “denied natural justice” by being “bound” to restrict the time of the hearing (given the availability of the interpreter) to between 12:30pm and 3:00pm on the day of the hearing and secondly, that the Tribunal failed to take into account the evidence of the applicant’s two witnesses who appeared before the Tribunal at the hearing and gave evidence on his behalf.

    89.The applicant complains by way of written submissions (paragraph 4 of the written submissions of 6 March 2007) that he was denied a fair hearing before the Tribunal because the Tribunal limited the time of the hearing (between 12:30pm and 3:00pm) because it felt “bound” by the availability for that period of the interpreter who had been made available to assist with interpreting at the hearing.

    90.Before the Court, the applicant explained that because of the time restriction, he was deprived of the opportunity to put his case such that it could be properly understood by the Tribunal. In particular, he felt that much of the time had been taken up with his two witnesses, and that therefore, he felt even less time was made available to him so that the Tribunal could properly understand what he personally wished to put to the Tribunal. In short, the applicant’s complaint was stated as “the Tribunal did not allow me enough time to speak”.

    91.I agree with submissions made by Ms Nolan that it is self evident that a Tribunal hearing that is restricted, to the extent that an applicant is not given the opportunity to properly explain his claims for protection, would not constitute a proper hearing within the understanding of the principles of procedural fairness at general law, and within the context of s.425 of the Act. However, I also agree with submissions that the length of the hearing alone does not justify such a finding.

    92.I also considered this complaint in light of such authorities as Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118 (“Maltsin”). Although the circumstances before the Full Federal Court in that case concerned the requirements of s.361 of the Act (providing for an applicant to request the Migration Review Tribunal to call witnesses), the Court’s consideration of that issue is apposite to the applicant’s complaint before the Court now. In particular, I note Maltsin at [47]-[48]:

    “The haste in which the Tribunal proceeded may be reflected in the use in the course of the hearing of inappropriate language, as for example, the reference to the applicant’s material as "stuff". Be that as it may, the Tribunal Member stated that she fixed the two-hour limit because she had a commitment of her own after 4 o’clock, although she herself acknowledged on more than one occasion that the subject-matter of the review was complex because there was a great deal of material to comprehend. It was, on its face, the very kind of case that called for, at the least, a measured approach to the evidence and arguments that the review applicant presented. As it happened, the two-hour period fixed by the Tribunal led the Tribunal to hurry through the taking of evidence from Mr Maltsin and Ms Bogodist and to speed through such other witnesses as could be "fitted in". The Tribunal conducted the hearing with an eye principally on the clock, and the transcript shows that the Tribunal limited the taking of oral evidence as it did solely because the Member ran out of time. The Tribunal did not in fact limit the taking of oral evidence by reference to such relevant considerations as the importance of the proposed evidence for the review, or the time the applicant might reasonably require fairly to put his case. It follows that the Tribunal did not genuinely give regard to the notice that Mr Maltsin gave under s 361(2) of the Act. It therefore acted in breach of its obligation under s 361(3) of the Act.

    The Tribunal’s obligation under s 353(1) of the Act is related to the rule of procedural fairness that requires that a person in the position of the applicant in this case to have a reasonable opportunity to present his or her case: compare Minister for Immigration and Multicultural and Indigenous Affairs v WAFJ (2004) 137 FCR 30 ("WAFJ") at [68] per French J (dissenting in the result), [114] per Lee J, and [122] per RD Nicholson J; W360/01A at [2] per Lee and Finkelstein JJ; and R v Thames Magistrates’ Court, ex parte Polemis [1974] 2 All ER 1219 at 1223 per Lord Widgery CJ, with whom Ashworth and Bristow JJ agreed. In Polemis, the master of a ship, who was convicted of an oil pollution offence by a stipendiary magistrate, obtained a writ of certiorari setting aside the conviction because he was not given sufficient time to prepare his defence and was thereby denied natural justice. The rules of procedural fairness required that Mr Maltsin be given a fair opportunity to put his case. The Tribunal’s failure to have a genuine regard to his wishes concerning the oral evidence that it was to obtain and the apparent haste in which it set about obtaining oral evidence deprived him of this opportunity. This is not a case in which it should be concluded that the apparent breaches could have no bearing on the outcome of the hearing.”

    93.There is no clear evidence before the Court as to the actual length of the hearing before the Tribunal. The applicant submits that the hearing was conducted between 12:30pm and 3:00pm on 8 January 1998. In the Court Book the copy of the invitation to the hearing (at CB 62) shows the commencement of the hearing to be 12:30pm on that date. There is nothing to indicate when the hearing ended. While there are references within the transcript of the hearing itself of the end time to which the interpreter is “booked”, or to the time which the hearing may run, there is nothing on the transcript of the hearing provided by Mr Laba Sarkis to show how long the hearing actually ran. I note however, the handwritten notation, (presumably by Ms Jallak) on the annotated copy of the transcript annexed to the affidavit of Ms Bogdan, as noting:

    “2:30 – hearing complete”

    94.Whether the hearing commenced at 12:30pm and ran until 3:00pm as the applicant appears to submit, or until 2:30pm as appears to be noted by Ms Jallak, the issue is whether the Tribunal’s conduct of the hearing irrespective of its actual length, was such as to allow the applicant sufficient time to reasonably put his case, and whether sufficient time was also provided to the two witnesses in this regard. The applicant’s complaint that the Tribunal felt bound by time restraints probably derives from the following exchanges in the course of the hearing. (Again using Mr Laba Sarkis’ transcript of the hearing, his notations and the annotations and comments by Ms Jallak as annexed to the affidavit of Ms Bogdan):

    1)At T6.9 (when hearing from Mr Obeid, one of the witnesses):

    “Member: I know that so you don’t have to tell me when…and on conscience of the time since I’ve got Mr Wadih and the interpreter has to leave at 3 o’clock…So is there something particular you… pressing important that you want to tell me?”

    2)At T8.8 (when hearing from the applicant) (Ms Jallak’s annotations on Mr Laba Sarkis’ version follow in square brackets):

    “Member: but  I see there are some time restrained [constraints] on you…The interpreter that is…what will do is trying speed things along [a little].

    (The interpreter is interpreting to the Applicant)

    Member: so having…you having heard what…are you having any trouble understanding Ms Najah?

    (The interpreter is interpreting to the Applicant)

    The applicant: No

    Member: sorry…are we interpreting quiet clearly here?

    (The interpreter is interpreting to the Applicant)

    Member: I think about [if we keep our] exchange short and simple we can make fast progress.

    (The interpreter is interpreting to the Applicant)

    Member: now having heard, it should take maybe two [till], three o’clock.

    (The interpreter is interpreting to the Applicant)

    Member: so I don’t know whether Mr Obeid wants to wait around, or Mr Wadih wants to wait around till three o’clock. Having heard my Obeid, is there anything that you want him to add to what you heard him say or on your behalf.

    …

    The interpreter is interpreting what the applicant is saying: no he gave his evidence, that’s [that’s] all.”

    95.The transcript of the hearing does not reveal any other references to any time constraints. On a reading of the transcript provided by Mr Laba Sarkis, and on the version the subject of comment and annotation  by Ms Jallak, it cannot be said that the witnesses, or that the applicant, were dealt with in such a way as it could be said that they did not have an opportunity to present their evidence.

    96.I should also just note that while the Tribunal was concerned about the order in which the evidence was to be provided, and that the witnesses would not be delayed and “waiting around for the next two hours” if the Tribunal were to take evidence from the applicant first (see T2). The Tribunal was not concerned there with the length of the hearing, but particularly, with the applicant’s  witnesses having to wait for the lengthy period within which the Tribunal felt may be required by the applicant himself to give evidence.

    97.I cannot see that the witness, Mr Obeid, was denied the opportunity to put forward his evidence. Having been called by the applicant to give evidence on his behalf, the witness appeared at some loss as to what he was expected to say (T2.8):

    “Member: what do you wanna tell me about [the applicant]?

    (The interpreter is interpreting to Mr Obeid)

    The interpreter is interpreting what Mr Obeid is saying: do you want me to say what I know or do you have specific questions?

    Member: well I didn’t call you as a witness here, [the applicant] called you as a witness, and he says that you know him from Lebanon, correct?”

    98.What follows reveals that the Tribunal gave Mr Obeid every opportunity to give his evidence:

    1)For example (at T3.5) far from being concerned with any time constraint the Tribunal said:

    “Member: just a minute Mr Obeid, will you just take it slowly otherwise I can’t keep up with you.”

    2)Further, the Tribunal was concerned to clearly understand his evidence (at T4.9):

    “The interpreter is interpreting what Mr Obeid is saying: we use…I use to give instructions, teached them how to move or to make this network mobile in a way that can connect the information from the people.

    (N.B. Mr Obeid said also that the course ran for ten days, the interpreter didn’t mention it)

    Member: I don’t understand what you mean by that?”

    The witness then gave an explanation.

    99.By the time that the Tribunal arrived at the point quoted above from T6.9 (see at [95] above), it is clear that having given the witness time to give his evidence about what he knew about the applicant and his claims, the witness continued to press matters already known to the Tribunal, or of general information. Plainly, the Tribunal’s comment about the interpreter having to leave at 3 o’clock was made in the context of seeking to focus the witness on matters relevant and personal to the applicant (“something particular…pressing, important that you want to tell me”). Further, what follows (at T7.1), far from showing that the Tribunal was seeking to rush his evidence, shows it gave the witness the opportunity to clarify and to relate the evidence to the applicant personally. Then, contrary to the applicant’s implication that the Tribunal sought to cut short the evidence of the witness, it turned to the applicant and particularly sought from the applicant whether he had any questions that he wanted asked of Mr Obeid (T7.3).

    100.What further follows in the transcript is the Tribunal’s explanation to the applicant as to the test that it was required to apply in determining his application, (that is, the Refugees Convention test of a well-founded fear of persecution). In context, the Tribunal’s reference (at T8.8 – see the extract quoted at [95] above) to the time constraints on the interpreter are plainly put in the context of indicating to the applicant that the Tribunal was concerned to ensure that the hearing proceed in a timely, rather than in a restricted fashion. But even having given that reminder, the Tribunal (at T9.4) again asked the applicant if there was anything further that he wanted Mr Obeid to say on the applicant’s behalf. Ultimately, the applicant is reported as saying (at T9.8):

    “The interpreter is interpreting what the interpreter is saying: no he gave his evidence, that’s all.”

    I cannot see that in all these circumstances, that any complaint that the witness Mr Obeid was not given a reasonable opportunity to put his evidence to the Tribunal can be made out. Even in spite of the applicant’s expressed satisfaction, the transcript reveals that for some little while after that, the Tribunal continued to take evidence from Mr Obeid.

    101.The evidence of Mr Wadih, the applicant’s second witness, commences at T11.7. Following a long series of questions from the Tribunal, the transcript reveals that again, the witness was given more than a reasonable opportunity to put forward his evidence. At T16.8:

    “Member: I don’t have any other questions for you, unless [the applicant] wants you to say anything more on his behalf.”

    The witness is then allowed to continue giving evidence until (at T18.3):

    “Member: ok. Is that all?

    The interpeter is interpreting what Mr Wadih is saying: yes, unless you would [want to] ask me something else…”

    102.Again, it is clear that there is nothing to show that the applicant’s second witness was not given every opportunity to put forward his evidence to the Tribunal without the Tribunal seeking to curtail this opportunity because of any time restriction.

    103.The applicant’s evidence commences at about T18.6 and continues until T38.2 when the following exchange occurs:

    “Member: Is there anything else you want to tell me [applicant] that I should know already take that down, you haven’t mentioned it and you will mention it.

    (The interpreter is interpreting to the Applicant)

    The interpreter is interpreting what the Applicant is saying: I don’t want to add anything, but you know my life story now that I’m in danger if I want…if I have to go back I’m scared that they will take me arrest me.

    Member: is that all then [applicant] do you have anything else?

    (The interpreter is interpreting to the Applicant)

    The interpreter is interpreting what the Applicant is saying: no that’s all, unless you want to ask me anything else, I’m ready.”

    The remainder of the hearing continues with the Tribunal asking the applicant about his activities in Australia.

    104.On any plain reading of the transcript, it cannot be said that the applicant was not given more than a reasonable opportunity to put his claims and explanations without any time restraint imposed by the Tribunal. It was the applicant himself telling the Tribunal that he did not have anything else to put. It cannot be said that the Tribunal was constrained by time when even after that, the Tribunal asked the applicant questions about his activities in Australia. This is hardly the action of a Tribunal looking to curtail a hearing because of time constraints or otherwise. In all therefore, this complaint is not made out.

    Failure to Take into Account (Relevant) Evidence of Witnesses

    105.The applicant also complains, as set out in paragraphs 5 to 7 of the submissions of 6 March 2007, and as pressed by the applicant at the hearing before the Court, that the Tribunal failed to take into account the evidence of his witnesses, which the applicant claimed supported his claim to fear persecution. This appears to be particularised in the submissions as a failure by the Tribunal to understand how two witnesses who were also former members of the LF, and one, Mr Obeid, who was described by the applicant as “one of the important names” (see paragraph 6 of the submissions) were able to obtain passports and leave Lebanon “through bribery”. Presumably, by implication, this applicant now seeks to say that the witnesses’ departure with the use of bribery to go through security checkpoints was relevant to the Tribunal’s finding that his account of his own departure was “highly implausible”.  

    106.The applicant also claims that it was not open to the Tribunal to conclude that the applicant and his activities were “not of high profile” given the evidence provided by his two witnesses. At the hearing before the Court, the applicant also complained, that his witness, Mr Obeid, gave evidence that the applicant was linked with Fawzi Al-Rassi and “that all his people who are employed with him are in the same danger” (T7.2). The applicant’s complaint is that the Tribunal failed to take account of this “important evidence” and that it was in this context that it was not open to the Tribunal to conclude that the applicant and his activities were “not of high profile”.

    107.I have already referred to, and in part set out above, those parts of the transcript of the hearing before the Tribunal, where the Tribunal took the evidence of the applicant’s witnesses. In its decision record, the Tribunal summarised the evidence of these witnesses as follows (at CB 73.2):

    “Tony Obeid, formerly one of the leading figures in the LF, but now an Australian citizen, said he knew the applicant in Lebanon as a member of the LF working for Fawzi Al-Rassi. He had seen the applicant during a ten day training course in 1987 and another in 1989. These courses aimed to train people to improve their collection of information on the Syrians.

    Maroun Wadih, who claimed to have been Samir Geagea’s security chief in 1987-1994, said he got to know the applicant in 1990. Mr Wadih claimed that he was in charge of about one hundred bodyguards in 1991 and that the applicant was one of his four or five section leaders.”

    108.The Tribunal is not required to set out in its decision record, every detail of evidence provided by an applicant’s witnesses. Nor indeed, to set out every detail of evidence provided by the applicant himself. Further, the weight accorded to different aspects of evidence by a Tribunal is a matter for the Tribunal itself. I cannot see that the Tribunal’s summary of the evidence given by the two witnesses, misunderstands or misrepresents their evidence or ignores significant or probative material. Both the witnesses confirmed aspects of the applicant’s own evidence. Mr Obeid confirmed that the applicant had been working for Fawzi Al-Rassi, which the Tribunal had understood to be one aspect of the applicant’s claim for fearing harm, in that:

    “The applicant said that if he returned to Lebanon he feared the Syrians would arrest him because of his intelligence background and because of his connection with Fawzi Al-Rassi.” (CB 72.10)

    Mr Wadih confirmed the applicant’s claim to have been a bodyguard of Mr Samir Geagea which was consistent with what the Tribunal reported the applicant’s claim to be (CB 72.7):

    “After the war, the applicant claimed that he became a bodyguard for Samir Geagea, the LF chief. He guarded Geagea’s residential complex at Ghidras and sometimes escorted Geagea to meetings.”

    109.In relation to the applicant’s claim now that the Tribunal ignored the evidence of the applicant’s witnesses, the Tribunal accepted the evidence of the witnesses and the applicant’s claims in that (CB 76.3):

    “I accept that the applicant worked for the LF collecting information on the Syrians beginning in 1985 [this was clearly in the context of the applicant having worked for Mr Fawzi Al-Rassi as he was his chief – see the transcript at T6.8 to T7.3] and that subsequently he worked as a bodyguard for Samir Geagea”

    110.The applicant claims now that he had a “high profile” and asserts that his activities, as in part put forward by the two witnesses, reveal that he had a “high profile”. I saw this as being a reference to the Tribunal’s statement at CB 76.9:

    “According to the independent country information, cited above, the Syrians and Lebanese authorities have little interest in rank and file LF members unless they were involved in serious crimes such as murder and assassination.”

    The Tribunal did not use the term “high” or “low profile” as now suggested by the applicant. The evidence given by the two witnesses was that the applicant was involved in collecting information against the Syrians, that he worked for Fawzi Al-Rassi, and in relation to Mr Obeid’s evidence, those who worked for Fawzi Al-Rassi were “in the same danger”. The applicant seeks to translate this into a situation that the Tribunal should have found that he was of such profile that he was not a rank and file member of the LF because of his intelligence gathering activities. Partly, in seeking to assert this, the applicant complains that the Tribunal should not have accepted independent country information which he said is “wrong”, that the Syrian and Lebanese authorities had little interest in rank and file LF members.

    111.The Tribunal’s decision plainly turned on its view of the evidence presented to it and in light of country information to which it referred. Namely, that apart from two days in 1985, there was no evidence that the applicant was of interest to the Lebanese or Syrian authorities, and his activities which were confined such as not to  attract the interest of the Syrian and Lebanese authorities (unless the applicant was involved in murder or assassination and there was no evidence of this put before the Tribunal). Further, it was based on the Tribunal’s rejection (“highly implausible”) of the applicant’s explanation as to how he was able to leave Lebanon through the security system at Beirut airport unimpeded.

    112.I cannot see that the Tribunal failed to understand the evidence provided by the two witnesses. It accepted in critical aspects, the witnesses’ evidence as to the applicant’s activities. In relation to the one particular that because the applicant worked for Fawzi Al-Rassi he was also similarly in danger, it was open to the Tribunal to find (remembering that the Tribunal clearly understood that the applicant had collected information and had been working for Fawzi Al-Rassi in doing this intelligence gathering activity) that notwithstanding this, the applicant was not of such standing, given that he had not committed serious crimes (“murder and assassination”) such that it would bring him to the interest of Lebanese and Syrian authorities.

    113.Further, and similarly, the applicant’s complaint that the Tribunal did not discuss with the witnesses how they were able to obtain passports and leave Lebanon “through bribery” does not reveal jurisdictional error on the part of the Tribunal. First, both the witnesses and the applicant were given every opportunity to put to the Tribunal any other matters that they thought relevant to the applicant’s claims. Had the applicant at the time, felt that there was evidence that these witnesses could give as to their own departure from Lebanon, including the use of “bribery”, and presumably, how this may have been relevant to the applicant’s own departure from Lebanon, then the opportunity was plainly there at the hearing, if not otherwise (given that the applicant was represented throughout the process of review by the Tribunal by a migration agent – Mr Laba Sarkis) to have put such evidence before the Tribunal. It does not appear that any such evidence was put to the Tribunal, let alone linking it to the applicant’s circumstances.

    114.Further, it is clear that in relation to the evidence from Mr Obeid, the Tribunal specifically raised the issue of his coming to Australia with him and asked him (see T5.7) whether he came to Australia as a refugee. Mr Obeid responded by saying that he came to Australia from Cyprus as a migrant. In my view, the opportunity was clearly there for Mr Obeid to have put not only at that point, but at any point during giving evidence to the Tribunal, the matter of his leaving Lebanon and whether he left Lebanon by paying a bribe. Further, the Tribunal, (at T9.7) specifically asked the applicant whether he needed Mr Obeid to say anything more and the applicant answered no. Similarly, with Mr Wadih, the Tribunal (at T16.8) asked the applicant if there was anything more for Mr Wadih to say on the applicant’s behalf.

    115.In all therefore, there was no evidence from either of the two witnesses, describing how they left Lebanon by paying bribes as the applicant now asserts. Nor, despite opportunity to give such evidence, was any such evidence given. The Tribunal made it plain to both witnesses, with the applicant present, that it was willing to listen to their evidence and emphasised that they had been called to give evidence by the applicant. It was clearly open to both the witnesses and the applicant to have provided any relevant information and for the applicant then to have made submissions to the Tribunal linking such evidence to his own circumstances and claims.

    116.I cannot see that there was any obligation on the Tribunal to have somehow discerned that there may have been some evidence that the applicant’s witnesses could have given that may have assisted the applicant in this regard without anything from the applicant or the witnesses to so indicate.

    117.Further, in relation to the applicant’s claim that his activities were “not of high profile”. Even if this is directed to the Tribunal’s noting that there was independent country information that Syrian or Lebanese authorities had little interest in rank and file LF members and that the applicant was therefore by implication seen as a rank and file member, then the evidence given by both the witnesses in my view was accurately understood by the Tribunal as being that the applicant had engaged in collecting information and intelligence about the Syrian forces and had then worked as a bodyguard for Samir Geagea. That there was information available to the Tribunal which indicated that such activities in all the circumstances were not such as to bring the applicant to the interest and notice of the Syrian and Lebanese authorities at about the time he left Lebanon was plainly open to the Tribunal. For all the reasons set out above therefore, the applicant’s complaint that the Tribunal ignored or misunderstood the evidence of his witnesses or even that the Tribunal failed to take into account a relevant consideration, is not made out.

    Further Complaint – “Illogical” Reasoning

    118.During the course of oral submissions before the Court, although not  pressed clearly (understandably, given he is not a lawyer), the applicant appeared to submit that the Tribunal’s reasoning was illogical. I understood this to be a complaint that the Tribunal’s finding as to his explanation as to how he was able to depart through security checkpoints in Beirut in all the circumstances was “illogical”. The applicant’s complaint appeared to be that as a member of the LF who had engaged in intelligence activities he was therefore of interest to the authorities, but he was still able to leave through Beirut airport and pass through the security checks because of the intervention and assistance of his relative who was a member of the Lebanese security forces.

    119.Putting to one side the extent to which illogicality is available to the applicant as a ground for review, I cannot see that the Tribunal’s decision was “illogical” or unreasonable. Nor is it unreasonable in the sense described in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. I note that what the applicant appears to assert here is not so much an unreasonable exercise of its discretion, but that the Tribunal was “unreasonable” or “illogical” in its finding of fact. That is, his explanation as to how he was able to depart Beirut airport was “highly implausible”.

    120.I refer to what I have already set out above at [64]-[82] about the applicant’s departure from Lebanon. Given the independent information available to the Tribunal, and I note in this regard that this was information available to the Minister’s delegate and referred to by her in her decision record (CB 56.3), the Tribunal’s finding was neither illogical or unreasonable. It may not have been to the applicant’s liking but I cannot see that his complaint now rises above a request for impermissible merits review.

    Further Complaint: Persecution “Proved”- No Evidence.

    121.The applicant also complained during the course of oral submissions at the hearing before the Court, that he “proved to the Tribunal” that his “life is in danger” in the same way that his witnesses’ lives were in danger, and that the Tribunal did not have sufficient evidence to say that his life was not in danger. The argument appeared to be that in these circumstances the Tribunal should not have affirmed the decision under review.

    122.The applicant’s submissions misunderstand the relevant statutory context in which the Tribunal was required to operate. It was not for the Tribunal to disprove or to find evidence that the applicant was not a refugee. Section 65 (as it was at the relevant time) required the Tribunal to reach a level of satisfaction that relevant criteria for a visa have been met such that in those circumstances a visa is granted. Amongst matters relevant to an application for a protection visa was that set out in s.36(2) of the Act. That was, in effect, that the applicant satisfied the Tribunal that Australia has protection visa obligations under the Refugees Convention toward the applicant. Relevantly this required that the applicant meets the definition of a refugee as set out in Article 1A(2) of the Refugees Convention.

    123.Plainly, in this case on the material and evidence before it, the Tribunal could not reach such a level of satisfaction and therefore affirmed the decision under review. The applicant’s statement that he “proved” to the Tribunal that his life was in danger may indeed be a reflection of a subjective fear of harm. But the Tribunal is required to reach a level of satisfaction on an objective basis. In all, I cannot see that the applicant’s complaint in this regard is more than a complaint that the Tribunal did not accept his claims that he was entitled to a protection visa in Australia. Simply, the Tribunal on the evidence before it could not reach the requisite level of satisfaction. This complaint also does not succeed.

    No Jurisdictional Error

    124.I am unable to discern jurisdictional error in the Tribunal’s decision. On this basis, the Minister’s objection to competency is upheld and the application is accordingly dismissed.

    Delay

    125.Given the above, it is not strictly necessary to consider the alternative, discretionary basis on which the Minister pressed the dismissal of this application. That is, even if there were jurisdictional error in the Tribunal’s decision, that the Court should refuse the relief sought on the basis of the unwarrantable delay by the applicant in applying for review. I should indicate to the parties that in the event that I had found (as I do not) that a ground of review could be made out and that the Tribunal’s decision was affected by jurisdictional error, then I would have nonetheless refused the relief sought on the basis of unwarrantable delay in the bringing of the application before this Court.

    126.The Minister pressed this issue by way of submissions filed on 21 February 2007 (see paragraph 17) and variously during the course of the hearings before the Court. The applicant was on notice of this issue by way of the Minister’s submissions, and what was amongst other things, discussed at the “second” hearing before the Court. However, the only submissions made by the applicant in that regard were encapsulated in what was in paragraph 12 of written submissions of 6 March 2007:

    “Based on the above mentioned error of law, the Honourable Court will consider the applicant’s circumstances and his involvement in class actions and his application to the Minister the Court is invited to exercise its discretion to accept relief.”

    127.The Tribunal’s decision record reveals that the decision was made on 23 January 1998 and notified to the applicant by letter sent to his address for service on that date. There is no dispute from the applicant as to any failure as to having been notified at that time. The application to the Court now was made on 19 September 2005. There was a delay of over 7½  years. The Minister however concedes, as is also alluded to by the applicant in his written submissions, that the applicant was involved in challenging the Tribunal’s decision by way of “class actions” which were not ultimately resolved until 20 June 2003. The Minister therefore pressed unwarrantable and unexplained delay for the remaining period of 2 years and 12 months.

    128.In Re Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491 at 495 to 496, McHugh J said:

    "Independently of the merits of this case, I find it difficult to see how a person who, with knowledge of the decision,delays 17 months before seeking relief, could ever be granted an extension of time to quash such a decision, unless some conduct of the respondent or the public body or official had brought about the delay."

    129.In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, the High Court confirmed delay as a discretionary basis for refusing relief (in the context of seeking relief by way of constitutional writs). See in particular [52] to [54] per Gaudron and Gummow JJ and [148] to [149] per Kirby J. Further, see McHugh J. in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 at [80]:

    "The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there isdelay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome."

    See also Hayne J. at [211] and Kirby J. at [174]. I note also what was said in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [27] to [28].

    130.The only explanation possibly put forward by the applicant to explain this delay of 2 years and 3 months is if the Court were to read his statement of “application to the Minister” in context as perhaps a request to the Minister pursuant to s.417 of the Act, for the Minister’s intervention, following the unsuccessful conclusion to the applicant’s involvement in the “class actions”.

    131.I take the view that if this is indeed what the applicant is seeking to put to the Court, then any pursuit of any such request is not in my view a sufficient explanation for the delay in this case (See the Full Federal Court in M211 of 2003 v Refugee Review Tribunal (2004) 212 ALR 520 and subsequently S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 and SZGZW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 457 and M206 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 24 which involved circumstances similar to those before the Court now – the applicant in that case had been involved in the “Lie” class action and then pursued a request pursuant to s.417 of the Act). The Court held that the explanation for the delay was less than satisfactory, although that case was resolved on the lack of the prospects of success in the application – see [18] and [20], and SZGPZ v Minister for Immigration and Multicultural Affairs [2006] FCA 683 at [25]-[26].

    1.In all therefore, while the period between the Tribunal decision and the application to the Court is in excess of 7½ years, the period of delay which is unexplained to any level of satisfaction is 2 years and 3 months and would in all the circumstances have moved this Court to have refused the relief sought by the applicant had the Tribunal decision been found to be infected by jurisdictional error (which has not so been found). In all, however, the application is dismissed and I uphold the Minister’s objection to competency.

    1.

1. 1.with the Department. This application is reproduced at CB 1 to 23). The application was accompanied by supporting documents including extract translations of the applicant’s responses to questions 36 to 40 (reproduced at CB 29 to 35), and documents issued from the Republic of Lebanon including a “Copy of Individual registration extracted from the registrers of the Inhabitants” and “Familial Extract of Vital Statistics for residents” (reproduced at CB 36 to 39).

   1.Further “Extract Translations” including an authorisation order for “travel in liberated areas” and a statement from Father Elias Shaab are reproduced at CB 44 and 45. A letter from the applicant is also reproduced at CB 46.

   1.On 22 March 1996, a delegate of the Minister refused to grant a protection visa (reproduced at CB 47 to 57) and on 10 April 1996 the applicant sought review of the delegate’s decision (reproduced as CB 58 to 60).

   1.The applicant’s reasons for his application to the Tribunal are reproduced at CB 59:

   “I ask you to reconsider my claim. I have a well founded fear of a persecution as a prominent member of the Lebanese forces. As you are aware Mr Samir Geagea is still kept in prison and all prominent members of the Lebanese Forces have been chased by the Lebanese and Syrian Intelligence if I am compelled to return to Lebanon I will be persecuted and harmed.”

   1.The Tribunal wrote to the applicant inviting the applicant to a hearing on 8 January 1998. (reproduced at CB 62 to 63).

   1.The matter came on before me by way of a Notice of Objection to Competency (“the Notice”) filed 4 November 2005 that sought an order to dismiss the application on the grounds that the Court lacks jurisdiction. The Notice was supported by the affidavit, attaching an annexure, of Therese Quinn, a solicitor in the employ of the respondent Minister’s solicitors, sworn and affirmed on 4 November 2005.

   1.At the hearing today I also have before me the first respondent’s submissions filed on 21 February 2007.

   1.On 4 November 2005 the respondents filed a Notice of Objection to Competency objecting to the jurisdiction of this Court to hear this matter on the grounds that the decision was made by the Tribunal pursuant to s.477(1A) of the Migration Act 1958 (“the Act”) [as it then was]. This decision provided that an application to the Federal Magistrate’s Court under s.39 of the Judiciary Act (“the Judiciary Act”) and s.483A of the Act must be made within 28 days of notification of the Tribunal decision. Section 477(1A) was amended on 1 December 2005 by the Migration Litigation Reform Act 2005, No. 137 to s.477(1) which is relevantly in the same terms. The Tribunal decision was handed down on 23 January 1998. The applicant was informed of the decision in writing on 23 January 1998 (CB 66).

   1.The respondent contends by way of the Notice that the applicants were notified of the decision by letter dated 23 January 1998 and that the applicant filed the application for judicial review of the decision on 4 November 2005, more than 28 days after the notification of decision, as required by s.477(1A) of the Act.

   1.The respondent further contends that the decision of the Tribunal in the present case was a privative clause definition as defined by s.474(2) of the Act.

   1.Under s.474(1) of the Act:

   A privative clause decision:

   (a) is final and conclusive; and

   (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

   (c) is not subject to prohibition, mandamus, declaration or certiorari in any court on any account.

   1.In the case of Ngu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21 (applied by this Court in SZHFV v Minister for Immigration & Anor [2006] FMCA 151), the Full Federal Court upheld a decision made by Nicholson J on 10 February 2004, who at first instance held a privative clause decision, lodged outside the time limit specified in s.477(as it was then) of the Act is, in those circumstances, incompetent, unless a ground of review can be made out ( I note that the new statutory provisions became operational on 1 December 2005 and applications filed in this Court prior to this date are not captured by the new s.477 even if the decision in such matters are made after 1 December 2005). In determining whether the Tribunal made a jurisdictional error, regard must be had to s.474 of the Act in the way described by the High Court in Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 426. If the Tribunal’s decision is a privative clause decision pursuant to s.474 then the time limit provided in s.474(1A)(as it was then) of the Act would apply. Also, pursuant to s.477(2)(as it then was) of the Act, the Federal Magistrates Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit (that is, 28 days).

   1.The issue of whether the Tribunal decision is a privative clause decision requires an examination of whether there was jurisdictional error in the Tribunal’s decision.

   1.The Tribunal’s decision record (in relation to the decision which is the subject of review before me now) is reproduced at CB 67 to 78.

   1.The Tribunal’s “Findings and Reasons” for this decision are reproduced at CB 76.2 to CB 78.10. The Tribunal:

   1)Accepted the applicant worked for the LF collecting information on the Syrians in 1985 and that subsequently he worked as a bodyguard for Samir Gagea up until early 1994 (CB 76.3 to 76.4).

   1)Found that the applicant did fear he may be persecuted by the authorities should he return to Lebanon, but that these fears were not well-founded (CB 76.4)

   1)Found that apart from two days in 1985, the applicant was not again detained by the Syrians and all the indications suggested that he was not of interest to the Syrians or Lebanese authorities. (CB 76.5)

   1)The fact that the applicant applied for and received a passport, and was allowed to leave the country, strongly suggested the authorities had no interest in him (CB 76.6 to 76.7)

   1)Found that the applicant’s war time record was confined to collecting information against the Syrians, and that according to independent country information, the Syrian and Lebanese authorities had little interest in rank and file LF members unless they were involved in serious crimes. Furthermore, a general amnesty was declared on 26 August 1991 for crimes committed by all militias and armed groups during the civil war (CB 76.10).

   1)Did not accept the applicant’s claim that he enlisted the assistance of a cousin, an official in the Lebanese security forces to escort him to Syria and facilitate his departure from Beirut airport. (CB 77.2)

   1)Found that the applicant’s departure from Lebanon was trouble free and therefore did not accept the applicant’s that the authorities went looking for him after his departure and paid visits to his home in Lebanon once a year in 1995, 1996 and 1997. (CB 77.5 to 77.6)

   1)Found the applicant was not on a wanted list held by the authorities in Lebanon (CB 77.6).

   1)Was not satisfied the applicant faced a real chance of persecution now or in the reasonably foreseeable future, if he returned to Lebanon (CB 77.10).

   On the basis of these “Findings and Reasons” the Tribunal affirmed the decision of the delegate not to grant a protection visa.

   1.In his application for review filed in this Court on 19 September 2005, the applicant claimed:

   “ 1. A declaration that the purported decision of the Refugee Review Tribunal (“the decision”) was not “privative clause decision” within the meaning of s 474 of the Migration Act 1958.

   2. A writ of certiorari removing the Tribunal’s decision into the court to be quashed.

   3. A declaration that the Tribunal’s decision was void and of no effect.

   4. A writ of prohibition directed to the First Respondent preventing her or her agents or delegates from acting or giving effect to enforcing the Tribunal’s decision.

   5.  Costs ”

   1.The applicant stated the grounds of review as:

   “The Tribunal denied the applicant natural justice, and procedural fairness.”

   1.The applicant also provided particulars of this claim, that being:

   Particulars:

   1. The Tribunal did not take into consideration the fact there were a number of translation errors, which affected the Tribunal’s understanding of my claims and its decision.

   2. Country information’s were not given to me for comments.

   3. The Refugee Review Tribunal’s member failed to take into consideration my personal circumstances which lead to serious persecution which made me fled the country to protect myself.

   4. I reserved my right to lodge an amended application when I receive all my documents. ”

   I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of Nicholls FM

   Associate:  Dawnie Lam

   Date:  21 September 2007