Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 (6 December 2000)

Last Updated: 6 December 2000

FEDERAL COURT OF AUSTRALIA

Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759

MIGRATION - review of decision of Refugee Review Tribunal - refusal to grant protection visa - whether failure to provide adequate standard of interpreting - whether interpretation so incompetent applicant prevented from giving evidence - whether departure from standard of interpretation related to matter of significance - effect of amendment to s 425(1) of Migration Act 1958 (Cth).

MIGRATION - effect of s 427(1)(d) of Migration Act 1958 (Cth) - whether Tribunal has duty to require investigation or medical examination.

MIGRATION - error of law - whether failure to give proper, genuine and realistic consideration - whether failure to receive relevant material into evidence.

Migration Act 1958 (Cth): ss 425(1), 427(1), 476(1)(a), (b), (c) & (e)

Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 considered

De Silva v Minister for Immigration and Multicultural Affairs [2000] FCA 765; (2000) 98 FCR 364 referred to

Long v Minister for Immigration and Multicultural Affairs [2000] FCA 1172 referred to

Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 1275 referred to

Kumar v Minister for Immigration and Multicultural Affairs [2000] FCA 1013 referred to

Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472 referred to

Kulwant Singh v Minister for Immigration and Ethnic Affairs [1996] FCA 1013 referred to

Gill v Minister for Immigration and Multicultural Affairs [2000] FCA 1057 referred to

Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 referred to

Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368 considered

Tedella v Minister for Immigration and Multicultural Affairs [2000] FCA 1643 referred to

Pollocks v Minister for Immigration and Multicultural Affairs [2000] FCA 1514 referred to

NADEREH MAZHAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL

AFFAIRS

V 517 of 2000

GOLDBERG J

6 DECEMBER 2000

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 517 of 2000

BETWEEN:	NADEREH MAZHAR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	6 DECEMBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 517 of 2000

BETWEEN:	NADEREH MAZHAR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GOLDBERG J
DATE:	6 DECEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1 The applicant applies to the Court pursuant to Pt 8 of the Migration Act 1958 (Cth) ("the Act") for judicial review of the decision of the Refugee Review Tribunal ("the Tribunal") on 26 June 2000 to affirm the decision of the Delegate of the Minister for Immigration and Multicultural Affairs on 7 March 2000 to refuse to grant protection visas to the applicant, her husband and their two children.

2 The grounds of review relied upon by the applicant are:

* the Tribunal failed to provide the applicant, a citizen of Iran, with an adequate interpreting and translation service. The applicant relied upon s 476(1)(a), (b), (c) and (e) of the Act;

* the Tribunal failed to investigate certain claims made by the applicant and failed to inform itself as to why one word was translated as "illegible" in a document submitted by the applicant. The applicant relied upon s 427(1)(d) and s 476(1)(c) and (e) of the Act.

The applicant's claims

3 The applicant said she had to flee Iran with her family as she was charged and convicted in absentia of the crime of supporting and assisting Zionism and plotting against the regime in Iran. She was sentenced to fifteen years in prison and a fine of 2 million tomam.

4 The applicant had a cousin, Mohammed Ahmadi, who she said had been "one of the Heads of the Central Bank in Tehran". The applicant was a friend of her cousin's wife and they would often have religious meetings with other women at her home. Around the middle of 1996 she noticed that her cousin's wife had become quite depressed. The wife said that her husband had been away on business for a long time. The applicant later discovered that he had been detained.

5 One afternoon a group of people came to the applicant's home, blindfolded her and took her away. They addressed each other in the manner of members of the Revolutionary Guard. She was interrogated about her cousin and told that he had been embezzling the bank's money to support the Zionists. The applicant told them that she knew nothing and they removed some of her clothing and assaulted and tortured her. She was sprayed with something like alcohol, a match was put to her and she felt herself burning and lost consciousness. When she became conscious she found herself in a small cell. After about three days she was told to go home and obtain information from friends and relatives. Her injuries took a long time to heal.

6 Twenty days after the applicant returned home, her husband, a transit truck driver, returned home. He went to the Office of the Public Prosecutor to complain about the treatment of the applicant but was told that political offences were not within their jurisdiction.

7 As a result of the suspicion surrounding the applicant, her husband lost his job and life became extremely difficult for them in Teheran. They relocated to a farm 160 km south west of Teheran in October 1996. In July 1999 a summons was sent to the applicant's former home in Teheran which she said required her to attend the Revolutionary Court in September. The summons had been collected by the applicant's husband's uncle. The summons stated that if the applicant did not attend, she would be arrested. The applicant had not heard from her cousin's wife since shortly before she had been arrested in 1996. After the receipt of the summons, she heard that an article in the Teheran daily newspaper had described the misappropriation and embezzlement of the bank's funds and what she called the "Zionist issue".

8 In September 1999 the applicant's father brought her a letter from her former home in Teheran. The letter enclosed the decision of the Revolutionary Court that the applicant was convicted in absentia of the crimes of assisting the Zionists and plotting against the regime, including being part of meetings that were not religious. The applicant and her husband decided to leave Iran and they arranged with an Iraqi man to obtain plane tickets and false passports. They left Iran on 22 November 1999 with the Iraqi man and travelled with him to Bahrain where they gave him their false passports. They then continued to Australia alone.

9 The applicant claimed to be a refugee on the basis of having imputed to her a political opinion which was in opposition to the government of Iran.

The hearing before the Tribunal

10 On 31 March 2000 the Tribunal, by letter, invited the applicant to come to a hearing of the Tribunal to give oral evidence, and to present arguments, in support of her claims. On 4 April 2000 the applicant, through Victorian Legal Aid, sent to the Tribunal a "Response To Hearing Invitation" form which stated that she wanted to come to the hearing. The form noted that the applicant needed an interpreter, the relevant language being "Farsi (Iranian, not Afghan)". The Tribunal booked a National Accreditation Authority for Translators and Interpreters ("NAATI") Level 3 Persian-Farsi interpreter for the hearing on 11 April 2000 but he became unable to attend due to sickness. On 10 April 2000 the Tribunal booked an alternative interpreter whose NAATI level of accreditation was Level 2. This interpreter was from Afghanistan and spoke Farsi with a heavy Afghan accent. The Tribunal held two hearings, at which the applicant was present, on 11 April 2000 and 21 June 2000.

Reasoning of the Tribunal

11 The Tribunal set out relevant principles of law which applied to the applicant's claim for refugee status and then described the applicant's claims in some detail. The Tribunal expressed "serious concerns" about the applicant's credibility which it said arose "mainly but not exclusively" from the documentation provided by the applicant. The Tribunal noted that, although the applicant and her family arrived in Australia without travel documents, it was established by the Department of Immigration and Multicultural Affairs that they had travelled from Iran on genuine Iranian passports, copies of which had been kept by the airline.

12 The applicant submitted two documents to the Tribunal, the summons which the applicant received in July 1999 and the decision of the Revolutionary Court in September 1999, together with translations of the documents. The Tribunal concluded that the documents were not genuine and it did not accept the claims which were based on them.

13 The summons (translated as a "Formal Notification") dated 20 July 1999, was a summons to attend a police station rather than the Revolutionary Court. It was found by the Document Examination Unit of the Department of Immigration and Multicultural Affairs to be an unreliable document. It contained entries made over carbon paper and entries made with a ball-point pen and it did not state a time when the applicant should report to the police station.

14 The decision of the Revolutionary Court was translated as "Interrogation and Minutes". It appeared to be a court order or sentence of "the General Court No 506 of Tehran" and purported to be a certified copy of the original but it contained two dates which were in actual writing and there were two different handwriting styles in the text. The Document Examination Unit found it to be not reliable. The translation of the document included the following text:

"On 03 September 1999 and at the appointed time, the General Court No. 506 of Tehran was on session with the following signatories attending. The file number 543/76 was examined in absentia. A submission from ... [illegible] of 68 Fifth Avenue, Janat Abad, the Third 35 Metry, Ayatollah Kashani Freeway was received.

Court: Considering the content of the file, and arguments supplied the case is declared closed and an order has been issued as follows."

15 The Tribunal noted that this document referred to a submission having been made by a person whose name who could not be deciphered on the copy but whose address was the same as that of the applicant. The Department had made an inquiry to the Australian Mission Office in Teheran and had been informed that a sentence of fifteen years of imprisonment and a fine of 20 million rials would have been under the jurisdiction of the Revolutionary Courts or the Ministry of Information, and not the public courts in Iran. The Tribunal considered evidence of inconsistencies in court procedures in Iran, but did not accept that a summons would not contain a date on which a person summoned was to present to the police station or court.

16 In relation to the court decision the Tribunal said:

"Nor does the Tribunal accept, because of its implausibility, that the applicant knew nothing (as she claimed at the hearing) of a supposed submission emanating from her address in Teheran to the court where the case was being heard; nor does it accept that it is fortuitous that the only portion of illegible text in that document is the name of the person making the submission. The Tribunal is not satisfied that the charge on which the applicant was allegedly convicted, as it appears in the `Interrogation and Minutes' document (participating in illegal demonstration [sic] to overthrow the Government and organising non-Islamic meetings) related to the reason she has claimed to have been detained. The applicant has reiterated that these are the documents as she received them and she does not know anything about these inconsistencies. The Tribunal does not accept this explanation."

17 The Tribunal was also concerned about the delay between the detention and torture claimed by the applicant and the serving of the summons. The Tribunal found it implausible that an offence attracting such a severe penalty would be treated as a routine matter and take three years to come to court, and that no attempt appeared to have been made to find the applicant for three years.

18 The Tribunal then considered the connection between the applicant's claims and her cousin. The applicant had described her cousin as "one of the Heads of the Central Bank in Teheran", but in the course of the hearing she said she was referring to the Bank Sepah. The Tribunal referred to evidence relating to embezzlement cases involving banks, including the Bank Sepah, and noted that the names of those charged and convicted did not include the applicant's cousin. The Tribunal drew no particular inference from this fact, but noted that the sentences handed down for embezzlement were ten years imprisonment, and that the applicant's sentence seemed out of proportion compared to these sentences.

19 The Tribunal concluded:

"... that the documents provided by the applicant are not genuine and therefore the claims based upon them are not accepted. The Tribunal does not accept that the applicant was detained and tortured nor that there is a connection between herself and a case of embezzlement which involves her cousin Ahmadi. The Tribunal does not accept that the applicant is subject to the adverse attention of the authorities in Iran as she left the country with an Iranian passport bearing her own name. The Tribunal thus finds that there is not a real chance that the applicant would face harm for her imputed political opinion should she return to Iran."

The review

20 The first ground of review relied upon by the applicant was that the Tribunal failed to provide an acceptable or adequate standard of interpreting with the result that the Tribunal failed to afford the applicant an opportunity to present her case. It was submitted that as a result there was a contravention of s 425(1) and s 427(1) of the Act, giving rise to grounds of review under s 476(1)(a), (b), (c) and (e).

21 The applicant tendered an affidavit from Dr Hosain Riazi, the Chairperson of the Persian (Farsi) Panel of NAATI and a NAATI Level 3 accredited translator and interpreter. Dr Riazi listened to excerpts of a recording tape of the hearing on 11 April 2000 and said that the interpreter did not perform to the standard expected of a NAATI Level 3 interpreter and that the quality of interpretation lacked precision and competence.

22 Dr Riazi also gave evidence of his interpretation of the word in the decision of the Revolutionary Court which in the translation submitted to the Tribunal he had not translated as it was "illegible". When he first translated the document he did so from a facsimile copy and because of the quality of the facsimile he could not distinguish this word. He had an opportunity to look at a better quality reproduction. His evidence was:

"... I am able to say that the word can appear to read as `motamed' which means `trusted person' or `confidant'. It is ambiguous whether the `trusted person' is intended to mean a person trusted by the applicant, or rather one trusted by the State.

On this point I also wish to note that it is not clear that the address which follows the reference to `confidant', being '68 Fifth Avenue, Janat Abad etc' is intended to refer to this `trusted person' or whether the address simply relates to the applicant. In this respect the word `of' following the initially illegible word is possibly misleading."

Dr Riazi produced translations of two newspaper reports, one of which had been referred to at the Tribunal hearing. That report related to a trial for embezzlement at the Export Bank of Iran and noted that the trial of the accused had been delayed for three years. The second newspaper report related to an incident where a female reporter had been assaulted by a police officer, but, as a result, had been charged and fined for abusing the police officer and for not observing the Islamic dress code for women.

23 The respondent objected to Dr Riazi's evidence in relation to his further interpretation of the "illegible" word in the court decision and to his translation of the two newspaper reports. This evidence is inadmissible and I reject it. None of this evidence was before the Tribunal, nor did the applicant seek to place it before the Tribunal. It does not assist in determining whether the Tribunal fell into the errors in respect of which complaint is made by the applicant.

24 The respondent tendered evidence to the effect that an interpreter with a NAATI Level 2 accreditation is one who has a level of competence and interpreting for the purpose of general conversations where specialised terminology is not required. A knowledge of English and the other language is required to reach this level.

25 The fact that the interpreter was not of a NAATI Level 3 standard but only of a NAATI Level 2 standard, of itself, is insufficient to establish that the required standard of interpretation was not available: Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 at 20; Long v Minister for Immigration and Multicultural Affairs [2000] FCA 1172 at [51]. The determination of that issue turns on the interpreting undertaken and whether it is shown to be competent and sufficiently adequate to enable the applicant to give her evidence and present her case.

26 The applicant's submission in relation to the standard of interpreting invites the inquiry whether the material before the Court is sufficient to make out a case that the interpretation before the Tribunal was so incompetent that the applicant was prevented from giving her evidence, and that the departure from the required standard of interpretation related to a matter of significance for the applicant's claim or the Tribunal's decision: Perera v Minister for Immigration and Multicultural Affairs (supra) at 22, 23.

27 In Perera v Minister for Immigration and Multicultural Affairs (supra), Kenny J undertook a detailed analysis of the authorities and the principles to be applied in determining whether the standard or level of interpretation at a Tribunal hearing vitiated the hearing. Kenny J's analysis was grounded in s 425(1)(a) and s 427(7) of the Act. At that time s 425(1)(a) relevantly provided that the Tribunal was required to:

"... give the applicant the opportunity to appear before it to give evidence".

Section 427(7) provided that:

"If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter."

Section 425 was replaced by s 3 of the Migration Legislation Amendment Act (No 1) (1998) (Cth) with effect from 1 June 1999. Section 425(1) now provides that:

"The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review."

Section 425A was introduced into the Act by the same amending legislation and it sets out the manner in which the invitation to the applicant to appear is to be given.

28 This legislative change raises the issue whether the analysis of Kenny J, and her conclusion that the provision of an incompetent interpreter, which results in an applicant being prevented from giving evidence, is a breach of s 425(1)(a) of the Act and therefore reviewable pursuant to s 476(1)(a) and (b) of the Act, is applicable to s 425(1) in its present form. That is to say, does the substitution of an obligation on the Tribunal to invite an applicant to appear and present arguments, for an obligation to give an applicant the opportunity to appear and give evidence, substitute a procedural obligation for a substantive obligation?

29 In Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 1275, Burchett J considered that the amendment to s 425 required a continuing invitation to appear to be extended to the applicant. Branson J considered that the amendment had wrought a substantive change to the content of s 425(1) which replaced the obligation of the Tribunal to give the applicant a genuine and reasonable opportunity to appear before it with a formal requirement. Marshall J decided the case on a basis which did not require him to address the issue. In Kumar v Minister for Immigration and Multicultural Affairs [2000] FCA 1013, Mansfield J did not find it necessary to determine whether the amendment cut down the entitlement provided by s 425(1) before amendment. His Honour did not find any such intention in the Second Reading speech which introduced the amendment or in the Explanatory Memorandum to the Bill.

30 In Long v Minister for Immigration and Multicultural Affairs (supra), no argument was addressed that the reasoning in Perera was not applicable to s 425(1) as amended and Mansfield J proceeded on the basis that "the Tribunal was obliged to provide to the applicant an effective opportunity to appear before it to give evidence by providing an interpreter at the hearing." In Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472, Wilcox J accepted the submission that s 425, as amended, no longer imported a continuing obligation. However, his Honour added, at [36]:

"It does not follow that events subsequent to the invitation are necessarily immaterial. Obviously, the invitation under s425 must remain open. Moreover, as Mansfield J pointed out, there may be a question, in a particular case, whether or not it is correct to conclude the applicant `does not appear before the Tribunal' at the designated hearing. Having regard to the significance of an oral hearing to an applicant for a protection visa, I would not subscribe to the view that the condition of non-appearance is necessarily satisfied by the applicant's failure to present personally."

31 The observations of the Full Court of the Federal Court in De Silva v Minister for Immigration & Multicultural Affairs [2000] FCA 765; (2000) 98 FCR 364 on the operation of s 425(1) are relevant, although the Court was considering whether that section imposed a continuing obligation on the Tribunal to identify issues and draw them to the applicant's attention. The Full Court (at 368) referred to a passage in the judgment of Sackville J, a member of the Full Court, in Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946; (1999) 92 FCR 315 at 331. Sackville J said:

"Section 425(1)(a), as its language and context make clear, is directed to ensuring that an applicant has an opportunity to appear before the RRT to give evidence, in cases where the RRT cannot decide in favour of the applicant simply on the papers. It is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear to give evidence. Procedural irregularities of that kind, whatever other consequences they may have, do not constitute a breach of s 425(1)(a) and thus do not provide a ground of review under s 476(1)(a) of the Migration Act."

The Full Court in De Silva noted that this passage was approved by a Full Court in Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 264 and continued at [368]:

"The 1998 amendment of s 425 did not affect the structure of the section, and in our view what was said by Sackville J aptly describes the purpose of the current section. Adapting his Honour's language to the amended provision, that purpose is to ensure that the applicant has an opportunity to appear before the Tribunal to give evidence and present arguments in cases where the Tribunal cannot decide in favour of the applicant `on the papers'. The section is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear and give evidence and present arguments".

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).

32 It is therefore necessary to consider the manner in which the interpretation of the applicant's evidence was given before the Tribunal in order to determine whether any departure from the standard of interpretation related to matters which were significant in relation to the applicant's claims, and significant in relation to the reasoning of the Tribunal.

33 It is apparent from the transcript of the hearing on 11 April 2000 that there were a number of answers given by the interpreter which were not responsive to the Tribunal's questions and which showed an element of either confusion or misunderstanding as to what had been asked by the Tribunal.

34 The respondent responded to the applicant's submission on this matter by submitting that, although there may have been some non-responsive answers, or confusion, or misunderstanding as to questions, on critical matters the Tribunal persisted with questions until the matter was clarified. It was submitted that to the extent to which there was any misunderstanding or confusion which did not appear to be clarified, it did not relate to any critical or significant issue either in relation to the applicant's claims, or the Tribunal's reasoning.

35 I turn to passages in the transcript of the first hearing on 11 April 2000 relied upon by the applicant. One of the issues before the Tribunal was whether the applicant's cousin was one of the Heads of the Central Bank as she had set out in her written statement. In the course of the hearing, the applicant said that the name of the bank was "Sepah". The Tribunal observed that the bank was not a Central Bank and the applicant's answer through the interpreter was:

"The bank name is Sepah and the man who worked there work in the central office."

Although there may have been some earlier confusion about whether the applicant's cousin worked at a Central Bank or some other bank, this passage made the position clear. The position was clarified further in the second hearing on 21 June 2000, where it became quite clear that the Tribunal understood that the applicant was saying that her cousin worked at the Sepah Bank, and had been charged with embezzlement or extortion in relation to that Bank. The Tribunal's reasoning does not involve any finding or conclusion adverse to the applicant based on the issue whether the cousin worked at the Central Bank or at the central office of another bank.

36 The applicant relied upon a number of passages to demonstrate confusion and misunderstanding in relation to the applicant's answers to questions. In the course of the Tribunal asking questions about the applicant's cousin the following exchange occurred:

"MR GENTILE: He was in charge - he was the director of the bank, was he?

THE INTERPRETER: Mm.

MR GENTILE: Okay. And what is this man supposed to have done?

THE INTERPRETER: I don't know. I don't know what was his duty, only I know he was the head - I don't know, I don't know what was his duty as a banker, but ---

MR GENTILE: Now, I will put my question in a different way. The reason that your cousin was depressed was because her husband was in gaol apparently, that's what we've said?

THE INTERPRETER: Yes, all the time I don't know actually he was in gaol but he hasn't got a normal action.

MR GENTILE: I did not follow. Can you repeat that?

THE INTERPRETER: At the time they came to visit me and I don't know they're in gaol, but their action is not normal.

MR GENTILE: I do not understand what you mean by action?

THE INTERPRETER: All the time she was uncomfortable, sad."

There was then further questioning about the applicant's cousin and the Tribunal then said:

"MR GENTILE: I need to - I really am not understanding what you are saying to me so I will need you to take me through it in a smaller chunks, if you do not mind? You said that this man, Mohammed Akhmadi, it's a person, right?

THE INTERPRETER: Mohammed Akhmadi, yes.

MR GENTILE: You did not interpret what I said - the preface that I just said, that I want her to take me through this in smaller chunks.

THE INTERPRETER: Okay.

MR GENTILE: Okay. Mohammed Akhmadi is a person, right?

THE INTERPRETER: Yes."

Thereafter there were further questions, including questions in relation to the applicant's cousin and his wife.

37 Shortly after, in the context of questioning about the loan which the applicant's cousin had obtained from the bank, the following exchange occurred:

"MR GENTILE: When was this loan business supposed to have occurred? When did they take out this loan for the Baha'is and Zionists?

THE INTERPRETER: They found out, they found out the big loan is I'm going to get through the friends of Mohammed Akhmadi and they executed Mohammed Akhmadi's friend and still they were searching to find out about the other routes of the canal to cut them out and stop them off.

MR GENTILE: Yep. When was this supposed to have happened?

THE INTERPRETER: You mean Mohammed Akhmadi's?

MR GENTILE: No. I'd like to know when this big loan thing was supposed to have happened?

THE INTERPRETER: I don't know. I said when they took me I found out this is their - this is their situation."

38 Later the Tribunal questioned the applicant about the court decision document which had been received in September 1999. The following exchange occurred:

"MR GENTILE: Yes? Okay. And can you tell me there was another argument in the past about this General Court, the Revolutionary Court, or Public Court. Have you had any further thoughts about that?

THE INTERPRETER: Only I have this much information because there is too many crimes at the moment in Iran. They just find that the crimes at different courts.

MR GENTILE: Okay. And you have no idea what this file is? You have never seen the information that they are accusing you of, if they are accusing you of anything?

THE INTERPRETER: Yes, they are written down for their illegal meetings and illegal demonstration of protests against the authority - against the Government.

MR GENTILE: Yes, well, we maybe - we maybe victims of some issues of translation here, but it says here in English, `Participating in the illegal demonstrations to overthrow the Government'.

THE INTERPRETER: They accused me, but I did not join to demonstration against their Government."

Shortly afterwards, continuing the questions in relation to the court decision, the following exchange occurred:

"MR GENTILE: Okay. But I am actually looking at the translation of the - of this thing called, `interrogation of minutes' ---

MR LUCAS: Yes.

MR GENTILE: --- which actually says, `Participating in illegal demonstration to overthrow the Government and organising non-Islamic dealings.' I mean, what I am trying to understand is that you were taken in and badly treated for four days in 1996, okay, and then you went away from Tehran to this country property. Three years later you received a request to go and report to a police station, and you actually do not know what for, it does not say anything about the charges here, and I am wondering why you have assumed that this is to do with your detention three years before, and why you did not try and find out what it is that they were charging you with - or what was the problem, the issue.

THE INTERPRETER: Yes, actually I would like to say I want to manage to some other places, so other countries they are going to investigate about the Iran individuals - people that are living there. Individuals are not important there. The people they are not important for the authority for the Government and they wanted to - to show kind of an example for the others and they ruin someone's life to give as an example and give as a warning and caution. That's why those individuals are not important. I would like to give an example to you. There was someone by the name of Mr Montazzari. He was a kind of a religious person. He got special clothes and dress to be a kind of a priest for the people, to be a guide. But unfortunately the government they took him and they got his special dress and they caution him, `You can't be a priest for the people any more or a guide' and they sent them - and they caution him to stay away from the people, `you're not allowed to teach people. You're not allowed to contact people, you're not allowed to give speech to people.'"

39 These passages demonstrate that there were occasions when the interpreting undertaken by the interpreter was inadequate. They demonstrate either a lack of understanding of the question asked, an inability to translate the question for the applicant so that she understood it, or an inability to translate her answer so as to make it a meaningful and responsive answer to the question. However, I am not satisfied that any of the passages in respect of which such confusion, misunderstanding or non-responsiveness arose were significant, having regard to the applicant's claims, or were critical, having regard to the reasoning, findings and conclusions of the Tribunal.

40 The Tribunal had serious concerns with the applicant's credibility but it said that that concern arose:

"... mainly but not exclusively from the documentation provided in corroboration of the applicant's claim."

The Tribunal then reasoned:

"The Tribunal is aware of the difficulties in the areas of credibility and also in making final determinations on documentation, however, in this case the combination of independent reports on the documentation and the internal inconsistencies within the documentation lead the Tribunal to conclude that the documentation is not genuine and that the claims based upon it are not genuine."

The Tribunal did not accept the applicant's claims that she was detained and tortured and that there was a connection between herself and a case of embezzlement which involved her cousin. However, the Tribunal did not base its findings on the credibility of the applicant, upon her demeanour, or any inconsistencies in the manner in which she gave her evidence, or her inability or unwillingness to respond to questions. The passages to which I have referred, which might fairly be described as departures from the requisite standard of interpretation, were not critical in the presentation of the applicant's case, nor did they influence the Tribunal in its reasoning and the findings which it made. The Tribunal's conclusions were based mainly upon its analysis of the documentation supplied and the inconsistencies and difficulties with it. None of the passages in the transcript which demonstrate incompetent interpreting bore upon these conclusions. On occasions when there did initially appear to be confusion or misunderstanding about an important issue, the matter was clarified. For example, this is demonstrated by the earlier passages relating to the Central Bank and the Sepah Bank at par 35 above.

41 The applicant submitted that the Tribunal found that the meetings she had with other women in 1996 were religious meetings. Insofar as the Tribunal may have misunderstood the applicant's evidence in this respect, such misunderstanding does not arise from any problem of interpreting or translation. The Tribunal did not make a specific finding that these meetings were purely religious in nature. If it had done so, it would have been open to it to have made such a finding as the applicant said in her written submission:

`We would often have religious meetings with other women at my home."

In any event, it appeared in the transcript that the meetings were not only religious but also social. I refer to the following passage:

"It was a very general normal meeting. All the ladies gathering in our house and we beginning our meeting with the reading of the Holy Crown [sic] and pray to God and after that it was just a normal conversation between the ladies".

The Tribunal then put to the applicant that in her english statement she gave the impression that the meetings were for religious purposes. The applicant's response was:

"It was a religious meeting and after the religious meeting we got free conversation, we've got a free conversation. Free conversation."

The matter was put beyond any doubt in the second hearing on 21 June 2000 when the applicant made it clear through the interpreter that after prayers they would sit down and discuss a number of issues and have social talk. During the second hearing the following exchange occurred:

"MR GENTILE: Yes, but the purpose of these meetings was not political. The purpose of this meeting was social and religious.

THE INTERPRETER: Yes, it was friendly gatherings. It was meant to be social get togethers for people to empty their chest, talk about their issues."

42 The second main ground of attack on the Tribunal's reasoning is that the Tribunal failed in its obligations under s 427(1)(d) of the Act. That section provides:

"(1) For the purpose of the review of a decision, the Tribunal may:

...

(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination."

The applicant submitted that the Tribunal:

* failed to require the Secretary to arrange for the applicant to undergo a medical examination as she claimed she had scarring which confirmed her claim that she had been tortured in July 1996;

* failed to inform itself as to why, in the translated version of the Court decision, which was entitled "Interrogation and Minutes", one word was translated as "illegible". It was also submitted that by failing to do so, the Tribunal had no basis for determining that the document was not genuine.

43 The applicant's submission proceeded on the basis that s 427(1)(d) imposes a duty on the Tribunal to adopt a procedure of having the medical examination carried out, and to follow up itself the reason why the name in the court decision was illegible. Section 427(1)(d) in its terms, creates no such obligation but rather empowers the Tribunal, by way of discretion, to make any necessary investigations. In Kulwant Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 1013, North J said:

"In my view, there is no implicit requirement in s 427(1)(d) that the Tribunal consider whether to have the Secretary arrange a medical examination. The section is permissive. It gives the Tribunal a power. The Act does not require that the power be exercised, and it follows that it does not require the Tribunal to consider whether it should be exercised. Thus, although a failure to consider whether to exercise the power may be unwise in certain circumstances, it is not a failure to observe a procedure required to be observed by the Act.

44 A similar approach was taken by Emmett J in Gill v Minister for Immigration & Multicultural Affairs [2000] FCA 1057, where his Honour said at [10] and [11]:

Section 427(1) confers a discretionary power on the Tribunal. It does not require that that power be exercised. The provisions of section 427 can be contrasted with provisions such as section 425 which requires that in certain circumstances a Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments.

It was contended, nevertheless, that in circumstances where the Tribunal was to make a decision concerning the authenticity of certain documents and Arshad insisted that the documents were genuine, a duty arose on the part of the Tribunal to exercise the power conferred by section 427(1) to arrange for an examination of the documents. The argument appears to me to have no substance. I do not consider the fact that Arshad maintained the authenticity of documents imposed any obligation on the Tribunal to exercise the power under section 427 to arrange for the making of any investigation in relation to the authenticity of the documents." (Emphasis added)

The reasoning of French J in Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277 in relation to the obligation of the Migration Review Tribunal under s 359 of the Act also supports the proposition that s 427(1)(d) does not impose an obligation on the Tribunal to make enquiries of the nature claimed by the applicant, and that the failure to make any such enquiry does not give rise to any ground of review under s 476 of the Act: see also Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim [2000] HCA 50 at [13] and [14] per McHugh J.

45 There is no merit in the submission that the Tribunal failed to inform itself as to why, in the translated version of the court decision, one word was translated as "illegible". The applicant submitted that the Tribunal did not turn its mind to why the word "illegible" was in the document. In the course of the second hearing on 21 June 2000 the Tribunal asked the applicant through the interpreter whether she could read the name which was illegible. The answer was "no, I cannot read it either". The document had been submitted by the applicant with a certified translation and I do not consider that the Tribunal, having failed in its attempt during the hearing to find out what the word was, was under any obligation to take the matter further.

46 The applicant submitted that the Tribunal effectively determined that the applicant was not a credible witness on the basis of the word "illegible". This submission misunderstands the reasoning of the Tribunal as there were other reasons given by the Tribunal for its rejection of the document as not genuine. It was found to be not reliable by the Document Examination Unit. Although it purported to be a certified copy of the original document, it contained two dates in actual writing and there were two different handwriting styles in the text. Further, although the Tribunal was sceptical about the fact that the only portion of illegible text in the document was the name of the person making the submission, the reasoning of the Tribunal related to the fact that the applicant knew nothing of a submission emanating from her address in Teheran.

47 The applicant submitted in the alternative that the failure to procure the medical examination was an error of law on the part of the Tribunal within s 476(1)(e) of the Act as the consequence was that the Tribunal failed to give proper and genuine consideration to the applicant's case. In this respect the applicant relied upon Anthonypillai v Minister for Immigration & Multicultural Affairs [2000] FCA 1368. In that case Merkel J said at [17]:

"It is also well established that, in arriving at its decision, the RRT is under a duty to determine the material questions of fact before it for its determination after giving `proper, genuine and realistic consideration upon the merits' to those questions of fact: see Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Hindi v Minister for Immigration and Ethnic Affairs (1998) 20 FCR 1 at 12-15 per Sheppard J; Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472 at 483 per Gummow J; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 96 per Hill J; Mocan v Refugee Review Tribunal (1997) 42 ALD 241 at 245 per Merkel J and Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28 at 64 per Merkel J."

In Tedella v Minister for Immigration and Multicultural Affairs [2000] FCA 1643 North J considered it to be "undoubted" that a failure to give proper, genuine and realistic consideration upon the merits, in that case, to the question of the genuineness of two documents, was a ground of review, relying on Anthonypillai.

48 The respondent submitted that Anthonypillai was wrongly decided and that I should not follow it. The basis for this submission was that the cases upon which Merkel J relied at [17] of his reasons were cases involving the following of a policy without regard to the merits of the case and that that ground was now found in s 476(3)(c) of the Act. It was said that Merkel J fell into error in not identifying any rule or policy in accordance with which the Tribunal had acted in reaching its decision. I do not consider that the cases to which Merkel J referred at [17] of his reasons should be read so narrowly. Although some of them involved decisions where a policy was followed, the reasoning in the cases is not confined to situations where a policy is followed without regard to the merits of the matter.

49 In Pollocks v Minister for Immigration and Multicultural Affairs [2000] FCA 1514, Finkelstein J applied Anthonypillai, nevertheless recognising that:

"... this ground of review is not to be regarded as a substitute for a complaint that the Tribunal failed to take into account relevant considerations, took into account irrelevant considerations, arrived at a decision that was unreasonable in all the circumstances or approached the resolution of the issues before it in an illogical manner. Those grounds of review are not available under s 476. To show that the Tribunal had not given `proper, genuine and realistic consideration' to the case before it amounts to saying that the Tribunal did not really appreciate or understand the issues that it was required to resolve in order to arrive at a lawful decision, or that it did not consider those issues in any real sense."

This passage demonstrates the relatively confined area within which a breach of the obligation to give proper, genuine and realistic consideration to the case will arise.

50 Whatever be the extent of the requirement to give proper, genuine and realistic consideration upon the merits to the issues which fell for decision before the Tribunal, that requirement was not breached in the circumstances of this case. It is apparent from the Tribunal's reasoning, to which I have already referred, that it fully appreciated and understood the issues before it in relation to the applicant's claim to have been detained and tortured, her connection with her cousin, who she said was the subject of investigation for embezzlement, and the authenticity of the two documents upon which the applicant relied. Each of these matters was given detailed consideration by the Tribunal in a manner which demonstrated that the Tribunal appreciated the relevance of those issues to the claims of the applicant for refugee status.

51 The applicant also submitted that the Tribunal failed to receive into evidence material from the applicant supporting her claims in relation to her sentence and, therefore, had no basis for making a finding that the sentence which she claimed had been imposed upon her was implausible. This failure related to a newspaper report of a trial of three employees of the Export Bank of Iran on charges of misappropriation. The report disclosed that the trial of the accused had been delayed for three years. The Tribunal had questioned the plausibility of the applicant's account on the basis that her summons did not arrive until around three years after the incident which she claimed generated the summons.

52 Whether or not the Tribunal was under an obligation to receive the newspaper report into evidence, the relevant evidence which the applicant wished to extract from the newspaper report was placed before the Tribunal. In response to a question from the Tribunal as to why it took three years before the applicant was summonsed to go to the court, the applicant referred to the article in the newspaper and the Tribunal asked "What have you got there?" The following exchange occurred:

"THE INTERPRETER: The title is about the $800,000 - some money, it is lots of money and they accused the people for the $800,000 that is bribery or something and the subject is about why they summoned them for the court after three years. Here is this one. They waited for three years until they asked them for the court.

MR GENTILE: So what you are saying to me is it is not unusual for this kind of delay to be in these sorts of proceedings?

THE INTERPRETER: Yes, because it is quite common as you see in this newspaper. It is about stealing $800,000 and after three years they summon them for the court. Yes, such a thing is going to happen. There is normally why such a thing happen there.

MR LUCAS: This article I will arrange to get translated too. It provides an analogous situation to the applicant's."

Mr Lucas was the solicitor representing the applicant at the hearing. The relevant information which the applicant sought to obtain from the newspaper report was therefore placed before the Tribunal and the exchange to which I have referred demonstrates that the Tribunal did not fail in any obligation which may have been imposed on it under s 427(1)(d).

53 There was also criticism of the Tribunal's reasoning in relation to the court decision on the basis that it drew a conclusion from the document which was based upon a mistake of fact. The Department of Immigration and Multicultural Affairs, when seeking information about the court decision from the Australian Mission in Teheran, told the Mission that the document was in Arabic. This was a mistake because the document was in Farsi. The response from the Australian Mission was that an Embassy lawyer had said that Arabic language documents were never used in Iran for any legal or formal issue. However, from the point of view of the reasoning of the Tribunal, nothing turns on this fact. The Tribunal did not refer to this matter in its reasoning and it did not draw any conclusion or make any finding by reference to the language of the document.

54 The applicant's submission that the Tribunal failed to give proper, genuine and realistic consideration to her claims strayed into the arena of merits review which it is not open to the Court to undertake. I refer to the criticism of the Tribunal's finding that it was implausible that the applicant's alleged offence would be treated as a routine matter and take three years to come to court. It was open to the Tribunal to make this finding and the applicant's criticism is no more than that the Tribunal should have reached a different conclusion, having regard to the evidence before it. It was also said that the Tribunal had assumed the applicant was an embezzler when measuring the severity of her sentence against that handed down to persons convicted of embezzlement. The Tribunal made no such assumption. Rather it compared the applicant's sentence for her alleged crime with that of those convicted of embezzlement and opined that the applicant's sentence seemed out of proportion. It was open to the Tribunal to make such a finding.

55 The application will be dismissed with costs.

56 I wish to record the indebtedness of the Court to counsel for the applicant who appeared pro bono. Counsel for the applicant prepared substantial written submissions and drafted an amended application which enabled the Court and the respondent to be made aware of the precise nature of the grounds of review relied upon by the applicant. I was also assisted by the oral submissions on behalf of the applicant and counsel is to be commended for appearing pro bono and assisting the administration of justice.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated: 6 December 2000

Counsel for the Applicant:	Ms Eilish Cooke - appeared pro bono
Counsel for the Respondent:	S G E McLeish
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 November 2000
Date of Judgment:	6 December 2000