Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 (21 November 2000)

Last Updated: 24 November 2000

FEDERAL COURT OF AUSTRALIA

Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679

IMMIGRATION - application for review of a decision of the Refugee Review Tribunal ("the Tribunal") - applicant interviewed by an officer of the Department at airport on arrival - applicant not provided with a copy of the interview or asked to comment on it - Tribunal relied in part on the contents of the airport interview - obligation of Tribunal to provide information to applicants pursuant to s 424A of the Migration Act 1958 (Cth) - failure to provide such information is a reviewable error - applicant sought to rely on Red Cross Certificate as to his imprisonment - Tribunal did not accept authenticity of the Certificate - Tribunal did not consider investigating the authenticity of the Certificate - in the circumstances failure to consider whether to undertake any investigation amounted to a reviewable error

Migration Act 1958 (Cth), ss 424(1), 424(2), 424A(1), 424A(3)(b), 427(1)(d), 427(3)(a), 430 & Part 7

R v L (1994) 49 FCR 534, referred to

Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, cited

Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275, applied

Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1990) 90 FCR 287, referred to

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469, cited

Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553, referred to

Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946; (1999) 164 ALR 339, cited

Gebeyehu v Minister for Immigration & Multicultural Affairs [1999] FCA 1274, applied

Cho v Minister for Immigration & Multicultural Affairs [1998] FCA 1663, cited

ABDULAZIZ AL SHAMRY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1254 of 2000

MADGWICK J

21 NOVEMBER 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1254 of 2000

BETWEEN:	ABDULAZIZ AL SHAMRY APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	21 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be allowed.

2. The decision of the Refugee Review Tribunal be set aside and the matter be remitted to the Refugee Review Tribunal, differently constituted, for determination according to law.

3. The respondent is to pay the applicant's costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1254 of 2000

BETWEEN:	ABDULAZIZ AL SHAMRY APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	21 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1 In this matter Mr Abdulaziz Al Shamry, the applicant, seeks judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), dated 22 October 1999, in which the Tribunal affirmed the decision of a delegate of the respondent Minister not to grant the applicant a protection visa.

Factual background

2 The applicant was born, educated and worked in Kuwait, his country of former habitual residence. However, as a "bidoon" (explained below) he was not a Kuwaiti citizen. The applicant claimed to have suffered persecution as a bidoon (including for matters related to the pursuit of his profession as a journalist) and as somebody married to an Iraqi woman. He claimed, amongst other things, that he had been imprisoned for two years between 1991 and 1993 and subsequently detained for shorter but significant periods up to and including 1999.

3 Kuwait, it seems, has a population of about 2.2 million people, under 800,000 of whom are recognised as citizens. Apparently the country is a near-absolute monarchy, organised on hierarchical lines with various, recognised "classes". The "super" class consists of the ruling family. The "first" class is people directly descended from persons who had Kuwaiti nationality by 1920. Only males of this class choose the "parliament". The "second class" Kuwaitis are a small number given Kuwaiti nationality after 1920. The third class are the "bidoons" (or "bidouns"). Bidoons are not to be confused with bedouins. They are people who claim to be Kuwaitis but have no nationality. Apparently the term "bidoun" means "without". They are "stateless and harshly treated", as the Tribunal put it. The Tribunal accepted that there were about 120,000 of this class of people. The balance of the population consists of expatriates, in Kuwait to work.

4 On 14 June 1999, the applicant arrived in Australia. Upon arrival at Sydney Airport he was interviewed by an officer of the respondent and a purported record of the interview was made ("the airport interview"). On 23 June 1999, the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 21 July 1999, a delegate of the respondent Minister refused to grant to the applicant a protection visa.

5 The applicant applied to have the delegate's decision reviewed by the Tribunal. On 24 August 1999, the applicant attended a hearing before the Tribunal. At the conclusion of that hearing the Tribunal member thanked the applicant for having been an "honest witness". On 8 October 1999, the applicant forwarded a Red Cross Certificate to the Tribunal. The Certificate was accompanied by a covering letter stating that the Certificate had been obtained with the assistance of a named officer of the Sydney office of the Australian Red Cross.

6 On 22 October 1999, the Tribunal affirmed the respondent's delegate's decision not to grant the applicant refugee status, and on 2 November 1999 the applicant sought judicial review of the Tribunal's decision in this Court.

The Tribunal's decision

7 The Tribunal's reasons run to over 40 pages. The Tribunal summarised and analysed a mass of materials. The Tribunal's principal findings of fact are stated in the following paragraphs.

8 The applicant is a bidoon and stateless. He is married to an Iraqi woman with whom he claims to have lost contact some years ago.

9 Past discrimination against bidoons would not amount to harm sufficiently serious to constitute "persecution" for the purposes of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 ("the Convention"). In any case, bidoons now have the opportunity to obtain some form of Kuwaiti citizenship and in recent years their circumstances are somewhat changed for the better. The applicant would accordingly not have a well-founded fear of persecution on account of his status as a bidoon.

10 Iraqis are not now treated harshly, although during and in the aftermath of the Gulf War in 1990 and 1991, they attracted suspicion and were ill-treated.

11 As to the applicant personally, the Tribunal disbelieved much of what he had claimed, on account of internal inconsistencies between various versions of his story and between his claims and such of the (rather conflicting) independent materials as the Tribunal chose to accept. The Tribunal found:

* The applicant would be able to return to Kuwait because his documentation would prove that he was a genuine bidoon (expatriates from other Arabic countries often pretend to be bidoons to advance their claims to stay in Kuwait);

* The applicant does not have a genuine fear of returning to Kuwait;

* While the applicant may, in the past, have been questioned about his wife being an Iraqi, and may have been detained at check points, he had not been mistreated in the serious respects he claimed;

* In particular his claim that he was imprisoned for 2 years from 1991-1993 was rejected;

* If he had been detained at some time in the period 1991-1994, this was related to suspicions held as to his wife's Iraqi citizenship in the aftermath of the war with Iraq;

* While he had been detained for some periods in October 1994 and February 1995, this had no lasting seriously adverse consequences for him;

* It was not accepted that the applicant's marriage to an Iraqi would lead to any adverse consequences in the future; and

* The Tribunal did not accept that the applicant was imprisoned in or after 1996 in relation to his activities or status as a journalist coupled with his status as a bidoon (these matters are more fully explained below).

12 It is unnecessary to outline all aspects of the Tribunal's decision.

The applicant's legal concerns

(a) The airport interview

13 The applicant raises two matters said to require judicial review by this Court. The first concerns the use by the Tribunal of the airport interview, a supposed record of the "interview", an interrogation really, of the applicant by the respondent's officer. Under the heading "Claims and Evidence" the member referred to a transcript of the interview (possibly simply a record of interview) and set out the claims that the applicant had made during the interview. Under the heading "Findings and Reasons" the Tribunal member wrote:

"As he stated in his airport interview and in his protection visa application, the applicant was in the army until August 1990 - when he took a job as a journalist - not 28 June 1993. That is, he was already out of the army by August 1990.

...

The applicant stated in his airport interview that he was released from jail on 13 June 1993 after two years in jail. In his protection visa application, he stated he was released on the morning of 25 June 1993. There was no suggestion in the applicant's evidence that he was re-arrested and re-imprisoned in 1994 such that he could have received a second round of visits from the Red Cross on 4 and 11 April 1994, as indicated by the Red Cross certificate.

...

According to the independent country information, the Kuwaitis take a pragmatic approach to the bidoon problem which basically means that if they don't cause any problems, they are left alone but if bidoons do get caught at check points, they may be held for short periods ranging from hours to a day or two but they are almost always released... Even if the applicant was detained in 1994 and 1995, as he claimed, it did not have any lasting or seriously adverse consequences. The applicant continued in his employment as a journalist and rose to the position of being an editor of Seouff Magazine.

...

The applicant however, was not arrested in June or July or August 1998. On the contrary, according to the information in his protection visa application, he was released in June 1998 after having served a term in jail of eight months beginning in November 1997 and was not arrested again until 1 January 1999 when he was taken to the police station, detained for one month, and made to sign a document about his identity. On the other hand, in his airport interview, the applicant claimed that the last time he was arrested was in 1998 after somebody outside of Kuwait wrote an article about the tragedy of bidoons." (bold emphasis added)

14 Section 424A of the Act provides:

"(1) Subject to subsection (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c) invite the applicant to comment on it.

(2) The invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention.

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other persons is a member; or

(b) that the applicant gave for the purpose of the application; or

(c) that is non-disclosable information."

15 It was not in dispute between the parties that the existence and relevance of the airport interview was not raised with the applicant at or before the hearing before the Tribunal. Nor was it in dispute that the airport interview was "information" for the purposes of s 424A. It is claimed by the applicant that this amounted to a breach of the Tribunal's obligation under s 424A(1) to inform the applicant that it would be relying on the information contained in the airport interview, to ensure that the applicant understood why that information was relevant, and to invite the applicant to comment on it. However, counsel for the respondent argued that the applicant's complaint was overcome by the operation of s 424A(3)(b) which provides that the section does not apply to information that "the applicant gave for the purpose of the application".

16 The relevant question is, therefore, whether the airport interview may be considered to be information given for the purpose of the application. Counsel for the applicant submitted that the application referred to in s 424A(3)(b) is the application made to the Tribunal and not the initial application made to the respondent. Counsel for the respondent, on the other hand, argued that upon a proper construction of the section an applicant only makes a single "application" to the Minister for a protection visa. Despite the Tribunal considering the matter afresh, it was said that its role was to consider the same application as was before the delegate.

17 In my opinion, a clear distinction is drawn in the Act between a primary application made to the Minister and a later one made to the Tribunal. An application for a visa is an important concept under the Act. Pursuant to s 45, "a non-citizen who wants a visa must apply for a visa of a particular class" and, without limiting that requirement, the regulations may prescribe how when and where applications may be made. Section 46 has detailed provisions governing the validity of visas and s 47 obliges the Minister to consider a "valid application for a visa". Section 54 obliges the Minister to have regard to all of the information in a visa application.

18 Section 57(1) provides:

"In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for refusing to grant a visa; and

(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c) was not given by the applicant for the purpose of the application."

19 Part 7 of the Act (ss 410 to 473) deals with "Review of protection visa decisions". Section 411 makes certain decisions "RRT-reviewable". An application for review is a separate concept, according to the Act, and one also of importance. Section 412 deals with applications for review of such decisions by the Tribunal. These applications are also of great importance. An application must, among other things, be in the prescribed form and be given to the Tribunal within the prescribed period. Section 414 makes it a condition of the Tribunal's acting to review a decision that there be a "valid application".

20 Section 416 provides:

"Only new information to be considered in later applications for review

If a non-citizen who has made:

(a) an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or

(b) applications for reviews of RRT-reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;

makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:

(c) is not required to consider any information considered in the earlier application or an earlier application; and

(d) may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information."

21 Frequently, as this section implicitly recognises, there will be information considered on, and furnished in connection with, an application for review that was not considered in relation to a visa application at the point of primary decision-making.

22 Section 418 provides:

"(1) If an application for review is made to the Refugee Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.

(2) The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:

(a) sets out the findings of fact made by the person who made the decision; and

(b) refers to the evidence on which those findings were based; and

(c) gives the reasons for the decision.

(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision."

23 There is, in my opinion, no textual warrant for regarding the term "application", when used in s 424A as having a meaning different from what it plainly has elsewhere in Part 7 of the Act.

24 Further, the obligation in s 424A is not merely to provide the information to an applicant. The relevance of the adverse information must normally be explained (s 424A(1)(b)) and a specific invitation, by prescribed methods (s 424A(2)), to comment on it must be given to the applicant (s 424A(1)(c)). There is no obvious reason why the requirements of subs (1)(b) and (1)(c) of s 424A should be thought not to extend to information provided by the applicant before his/her application for review. The earlier information might well assume new and adverse relevance in the light of the later material very commonly obtained by the Tribunal. Fairness and efficiency would appear to be better served by the construction proposed by the applicant than that put forward by the respondent.

25 Nonetheless, the respondent argued that to suppose that s 424A(3)(b) merely disentitled an applicant to information regarding the actual review application before the Tribunal would oblige the Tribunal in many cases (depending in each case upon whether such documents were considered by the Tribunal to be a reason or a part of the reason to affirm the delegate's decision) to provide to the applicant a copy of his or her own application form lodged for the purposes of the primary review and a copy of the delegate's decision, previously provided to applicants pursuant to s 66(2)(c). Such a result was said by the respondent to be anomalous and unintended by the Act. The respondent submitted that s 424A was designed to establish a statutory alternative to the principles of natural justice. Seen in this light, the purpose of the Tribunal's obligation was to enable an applicant to respond to information which may be relied upon by the Tribunal, and therefore it would be unnecessary to furnish an applicant with information that had been forwarded to the Tribunal by an applicant or had otherwise emanated from an applicant.

26 What I have said above is perhaps enough to dispose of this "purposive" argument. There are limits to such an approach. It provides no "warrant for redrafting legislation nearer to an assumed desire of the legislature": R v L (1994) 49 FCR 534, see also Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249. In any case, the respondent's version of a purposive interpretation is, in my opinion, an unsound one for other reasons. Section 424A is not merely intended to provide a statutory equivalent of the rules of natural justice as understood at common law, but to replace those rules with a new regime. For example, nothing in the accepted rules of procedural fairness (natural justice) would oblige a tribunal to ensure, as s 424A(1)(b) does, that "as far as is reasonably practicable, ... the applicant understands" why adverse information is "relevant to the review", at least where the applicant is sui juris. It would therefore be wrong to limit the interpretation of s 424A by reference to the usual operation of the rules of natural justice.

27 Further, despite the respondent's suggestions to the contrary, it is not necessarily an anomalous result of the interpretation contended for by the applicant, that applicants should be provided with a copy, for example, of their own application form and a copy of the delegate's decision. Many applicants before the Tribunal are non-English speaking and/or illiterate and/or otherwise not well-educated. Many are unsophisticated. Some of such people may not fully appreciate the significance of such documentation and as a result copies of their own documentation or of the documents produced by others, may not be retained by them. It appears that s 424A intends, for the sake of fairness and efficiency in decision-making and for the associated purpose of administrative completeness, that applicants be provided with all of the information relevant to their claim that they have not themselves provided in connection with the current review application before the Tribunal.

28 The manifestly beneficial purpose of the legislation in question, enacted to meet Australia's obligations under the Convention, supports this construction of s 424A. As counsel for the applicant submitted, in many cases an applicant, upon arrival at the airport, will be in a foreign country, unable to speak English and without a passport. The degree of distress that such circumstances may engender, frequently compounded by tiredness after a long journey, suggests an imputable Parliamentary appreciation that a supposed record of information given under these circumstances ought fairly be provided to an applicant before it is held against him or her. In this case, for example, the applicant appears, from an ambiguity in the immigration officer's report, to have laboured under some confusion upon arrival as to whether he sought a visa on "humanitarian grounds" or as a refugee.

29 In any case, the airport interview cannot in my opinion be classed as information that the applicant provided "for the purpose of" his visa application. At the time the applicant was interviewed, he had not made any such application. The interview was conducted as a matter of departmental policy to detect illegal immigrants. It could hardly be presumed that the applicant would be aware of the information attributed to him in the interrogation, weeks later when he actually made his visa application.

30 For these reasons s 424A(3)(b) does not apply to the airport interview. The failure of the Tribunal to provide the applicant with a copy of it therefore amounts to a failure to observe a procedure required by the Act. Because of the centrality of s 424A to the actual decision-making process of the Tribunal and the fact that the Tribunal based its decision in part on information used by it in contravention of the procedure required by s 424A, it could in my view prima facie be said that a "[procedure] ... required by this Act ... to be observed in connection with the making of the decision [was] not observed" within the meaning of s 476(1)(a) and is therefore reviewable. The question of whether the decision was made for another reason, independently of this legal error, is considered below.

(b) The authenticity of the Red Cross Certificate

31 It is necessary to recount some of the background to this matter. At the conclusion of the hearing on 24 August 1999, the Tribunal Member thanked the applicant for "being an honest witness". There is no suggestion that the Tribunal Member was indulging in sarcasm . However, in his decision two months later, the Tribunal Member in effect treated the applicant as a liar grossly exaggerating his claims. No submission was made that this alone involved legal error. However, the applicant was led to believe that at least his honesty was not in question. Further, any suggestion that the applicant was not in custody for a substantial period in the early 1990s was not clearly raised with the applicant at the hearing.

32 After the hearing, the applicant's solicitor wrote to the Tribunal on 8 October 1999, saying among other things:

"Further evidence in support of the application for review

Please find enclosed a facsimile which the applicant has forwarded to me on 6 October 1999. I am instructed that the applicant is in possession of the original correspondence. The correspondence comprises Arabic and English language versions of a letter dated 14 September 1999 from the International Committee of the Red Cross confirming its past dealings with the applicant.

I am instructed that the applicant personally contacted the Sydney office of the Australian Red Cross about two months ago, seeking its assistance in obtaining verification from Kuwait of the ICRC's past dealing with him. (I note that the Tribunal is in possession of an original ICRC regarding the applicant.)

The applicant only received the response on 5 October 1999. Ms Melissa Haig from the Australian Red Cross public relations section (Red Cross House, Sydney) confirmed with me today that she had assisted the applicant to obtain this correspondence. The document speaks for itself.

..."

33 The English version of what the International Committee of the Red Cross ("the Red Cross") provided is as follows:

"The International Committee of the Red Cross (ICRC) certifies that the following person:

Name : ABDELAZIZ SALEH MNAHI ALSHOMMARI

Nationality : STATELESS

Date of birth : 02.08.1959

ICRC number : KWK - 308729

Was registered by the ICRC in the Criminal Investigation Department in Kuwait on 20.02.1993.

He was visited by the ICRC in the National Security Office in Kuwait on 22.02.1993 and 01.03.1993.

He was revisited by the ICRC in the National Security Office in Kuwait on 04.04.1994 and 11.04.1994."

34 As to this, the Tribunal said:

"I do not accept the genuineness of the Red Cross certificate sent to the Tribunal after the hearing. It follows therefore that I do not accept the submission from the applicant's adviser that this document supports the claim that the applicant was imprisoned for two years, as claimed. According to the details on the certificate, the applicant was visited by the Red Cross in the National Security Office of Kuwait on 22 February and 1 March 1993 and again on 4 and 11 April 1994. However, according to his own evidence, the applicant was not in detention in 1994 as he was released on either 13 June or 25 June 1993. I have considered the remarks about relatively minor inconsistencies in dates in Sundaraj v MIMA [1999] FCA 692, (Spender, Emmett & Hely JJ, 14 May 1999). I accept that this might apply to the difference between the date of the applicant's alleged release, given variously as 13 June 1993 and 25 June 1993; or the date of the first Red Cross visit, given in his statement of 25 June 1999 as 20 February 1993 and twice after that, whereas the Red Cross certificate gave the first visit as 22 February and three time[s] thereafter. However, I find the inconsistency between the inference in the Red Cross certificate that the applicant was in jail in 1994 and his claim that he was released in June 1993 is too significant to be overlooked. The applicant stated in his airport interview that he was released from jail on 13 June 1993 after two years in jail. In his protection visa application, he stated he was released on the morning of 25 June 1993. There was no suggestion in the applicant's evidence that he was re-arrested and re-imprisoned in 1994 such that he could have received a second round of visits from the Red Cross on 4 and 11 April 1994, as indicated by the Red Cross certificate."

35 The applicant firstly complains that the reasons for decision (required by s 430(1)(b)) are inadequate as to the rejection of the genuineness of the certificate. This complaint, however, seems to me to be misconceived. As I read the paragraph in question, a purported reason was given, commencing with the third sentence ("According to the details on the certificate ...). That reason, summarised, is that the certificate was inconsistent with the applicant's evidence that he was released in June 1993 and the absence of any suggestion by him that he was in gaol at any time in 1994. Such reasoning, given the express finding, a page earlier, that "I do not accept that he was imprisoned for two years between June 1991 and June 1993", is, to say the least of it, curious. But, in substance, that is not a complaint about non-observance of a s 430 procedure, but a suggestion that the Tribunal has exercised its powers, as to this matter, so unreasonably that no reasonable person could have so exercised the power. In this Court, that is not a ground for judicial review: s 476(2)(b).

36 Secondly, the applicant complains that, before declining to accept the apparently reliable certificate, the Tribunal could easily have

* "gotten" (in the language of s 424(1)) further information about its genuineness;

* invited one or more persons to give additional information (s 424(2));

* had the respondent's Department arrange for the making of an investigation about it (s 427(1)(d)); or

* summoned a witness or witnesses (s 427(3)(a)) for examination about the certificate's genuineness.

37 However, it is to be inferred from the Tribunal's silence as to why none of these avenues were pursued that the Tribunal gave no consideration to whether any such clarificatory exercise of its information-gathering powers was necessary. This was, it was argued, in breach of the Tribunal's duty, in the circumstances, under the Act.

38 I agree with this submission. In Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 289, Foster J, after referring to paragraphs 425(1)(b) and 427(1)(d) of the Migration Act 1958 said:

"The legislation, therefore, in my view, imposes upon the Tribunal (at least where circumstances so dictate) an obligation to consider whether it is necessary to obtain further evidence for the proper conduct of the review. A failure to enter upon this consideration would be reviewable error."

At the time of the decision in Yao-Jing, the Act provided:

"425(1) Where section 424 does not apply, the Tribunal:

...

(b) may obtain such other evidence as it considers necessary."

Section 425(1) was in similar form to the present s 424 of the Act.

39 In Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287, Wilcox J and I, having made the point that "all of the substantial claims ... put forward by an applicant must be considered", continued:

"In the course of doing so, the RRT must also, of course, bear in mind whether it should exercise any of its impressive ancillary powers to supplement the information put before it."

40 In Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553 at 561, Black CJ, von Doussa, Sundberg and Mansfield JJ said:

"Although we have concluded that there may be circumstances in which the Tribunal's obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge's general proposition that where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the Tribunal through official channels, if by that her Honour intended to convey (as the respondent suggested) that the Tribunal was under a duty to verify in such cases. In a particular case the Tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect." (emphasis added)

41 Although the actual reasoning given by their Honours to support this conclusion, namely reliance on the s 420 obligation to act according to substantial justice, must be regarded as at least questionable after Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 12; (1999) 197 CLR 61, there is no reason, having regard to the other authorities referred to, to doubt the validity of the conclusion itself.

42 I agree with Foster J's formulation, further supported by the dictum in Sellamuthu. Here, in my opinion, the circumstances did dictate that the Tribunal consider the use of its further investigatory powers. The circumstances included:

* The applicant had been told by the Tribunal that it considered him an honest witness. (As to this matter, some possible ((albeit inadvertent)) misleading of an applicant by the Tribunal may be of significance in determining whether ((under the former s 425)) a "genuine" opportunity had been given to an applicant to appear and give evidence before the Tribunal. This is made clear by Weinberg J's discussion of Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946; (1999) 164 ALR 339 in Gebeyehu v Minister for Immigration & Multicultural Affairs [1999] FCA 1274: see also my discussion of related matters at first instance in Cho v Minister for Immigration & Multicultural Affairs [1998] FCA 1663 at pp 7-11 ((the reasoning was disapproved by Sackville J on appeal but not by the majority)). By analogy, the matter may be regarded as significant in relation to the existence and scope of the Tribunal's duty to consider whether to exercise its investigatory powers);

* The authenticity of the certificate was not raised with the applicant;

* The apparent provenance of the certificate was impressive;

* That provenance was likely to be easily, quickly and cheaply able to be checked;

* There was no existing objective or independent material to cast doubt on the certificate;

* The certificate was relevant to a relevant claim by the applicant - to have been imprisoned for reasons other than breach of the criminal laws of Kuwait; and

* It was unfair to the applicant for the Tribunal to act on some unverified suspicion when means of verification or otherwise were readily at hand.

43 It was further submitted by counsel for the applicant that the Tribunal breached s 430 of the Act in a second way, namely that, in breach of s 430(1)(c), the Tribunal failed to set out its findings as to the applicant's credibility, which it was claimed was a material question of fact. This failure was said to arise from the fact that at the conclusion of the hearing before the Tribunal, the Member had said that the applicant had been "an honest witness", yet in the reasons for decision it was said that it did not accept the authenticity of the Certificate. Therefore, it was claimed that the Tribunal had failed to explain whether after consideration of the Certificate it now doubted the integrity of the applicant, or merely the integrity of the Certificate itself. However, in light of the reasons given above, it is unnecessary to consider this matter to finality.

Independent reasons for rejection of applicant's claims to refugee status?

44 It will be recalled that the Tribunal made a finding about the reasons for any imprisonment of the applicant in the early 1990's and its present relevance. The Tribunal said:

"Even if I accept that the applicant was detained at some time in 1991-94, according to his own evidence, it was because there was suspicion of his wife as an Iraqi citizen. This is not surprising in the aftermath of Iraq's invasion of Kuwait in 1990. I find therefore, that if the applicant was detained, it was because of his wife's nationality in the aftermath of a war, not because the applicant was a bidoon. Moreover, according to the applicant's evidence, he was released because there were no charges against him. In these circumstances, and in view of the independent evidence on the Kuwaiti government's attitude towards Iraqis, outlined above, I do not accept the suggestion that the applicant's marriage to an Iraqi woman will lead to adverse consequence in the future, if the applicant returned to Kuwait."

45 It seems to me that this is enough to insulate the finding that the applicant would not face persecution because he is married to an Iraqi, from the error in relation to the Red Cross Certificate. It could not be said that that error is one which actually induced the Tribunal to come to its decision about persecution for that reason (c.f. Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469), since the decision necessarily remains cogent even if it be assumed that the applicant was imprisoned for a lengthy period or for various periods in 1993-4. Nor does the error about the airport interview affect that conclusion.

46 It is, in my opinion, otherwise as to the finding that the applicant had no well-founded fear of persecution as a bidoon. To understand why, it is necessary to expand upon the earlier brief reference above (para [11]) to the applicant's claimed difficulties on account of his recent journalistic activities. The applicant's claims in this regard were that:

* He had been imprisoned for having, as a bidoon, dared to write about an esteemed Kuwaiti figure, a famous poet; and

* He had been imprisoned for having supposedly instigated, in a foreign journal, criticism of Kuwait for restricting his ability to travel as a journalist because of his bidoon status.

47 The Tribunal did not believe the applicant as to either of these claims. The Tribunal expressly relied on the airport interview to reject the claim of imprisonment for writing about the poet.

48 More fundamentally, the Tribunal implicitly and correctly recognised that (a) its conclusion on the issue of persecution as a bidoon was not dictated merely by its acceptance of certain parts of the voluminous, independent material as to changes in the treatment of bidoons generally, and (b) the applicant's personal circumstances also needed consideration. The Tribunal said:

"In view of my problems with the applicant's credibility and the changed circumstances prevailing in Kuwait regarding the status of bidoons, I am not satisfied that the applicant has a well-founded fear of persecution, now or in the reasonably foreseeable future, if he returns to Kuwait." (emphasis added)

49 Thus it was the combined effect of the problems that the Tribunal had with the applicant's credibility and the independent evidence that influenced its ultimate decision on the bidoon issues. Given the importance of the applicant's credibility to the Tribunal's decision and the use made of the airport interview and the Red Cross Certificate to impugn the applicant's credit, in my opinion, neither the airport interview, wrongfully not given to the applicant, nor the rejection of the Red Cross Certificate, wrongfully undertaken without consideration of the use of investigatory powers to clear the matter up, can confidently be said not to have played a part in the Tribunal's decision.

Disposition

50 The application is allowed. The decision of the Tribunal will be set aside and the matter remitted to the Tribunal, differently constituted, to be further dealt with according to law. The respondent is to pay the applicant's costs.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 21 November 2000

Counsel for the Applicant:	R Killalea
Solicitor for the Applicant:	McDonells Solicitors
Counsel for the Respondent:	M Leeming
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 March 2000
Date of Judgment:	21 November 2000