FEDERAL COURT OF AUSTRALIA SDAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1033 SDAH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 79 of 2002 von DOUSSA J ADELAIDE 19 AUGUST 2002 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 79 OF 2002 BETWEEN: SDAH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: von DOUSSA J DATE OF ORDER: 19 AUGUST 2002 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application is 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 SOUTH AUSTRALIA DISTRICT REGISTRY S 79 OF 2002 BETWEEN: SDAH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: von DOUSSA J DATE: 19 AUGUST 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) seeking judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 6 March 2002. The Tribunal affirmed a decision of a delegate of the respondent Minister to refuse protection visas to the applicant, his wife and their two children who had arrived illegally in Australia on 20 April 2001. 2 The applicant, his wife and family are Iranian citizens. The Tribunal accepted that they were members of the Sabean Mandean faith. They claimed to have suffered persecution by reason of their religious faith and by reason of their membership of that particular social group. On account of this persecution they claimed to be refugees to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugee Protocol (those expressions being defined in s 5(1) of the Migration Act 1958 (Cth) (the Act)). 3 Before this Court, counsel for the Minister contends that the decision of the Tribunal is a privative clause decision within the meaning of s 474(2) of the Act, and accordingly attracts the operation of s 474(1) which provides: "(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." 4 It is common ground between the parties that s 474(1) is to be construed and applied according to the principles stated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. The section is to be understood as not having a validating effect upon a decision that might otherwise reflect error unless the impugned decision is "a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body" (per Dixon J at 615). 5 Counsel for the applicant contends that the decision under review was not a bona fide attempt by the decision-maker to exercise the power vested in it under s 414 of the Act to review the original decision of the Minister's delegate. Counsel contends that the reasons for decision of the Tribunal demonstrate that the Tribunal took such an uncompromising and harsh approach to its assessment of the reliability of the claims of the applicant and his wife that it indicates pre-judgment of the claims, never to be altered. It is contended that a reading of the Tribunal's reasons for decision as a whole demonstrates a rejection of the evidence of the applicant and his wife on critical issues, justified by the simple expedient of a blanket credibility finding based either on no or minimal grounds, a pre-judgment of the ultimate issue, and a failure to approach the claim with a mind open to persuasion. Particular emphasis is placed on a submission that central claims of the applicant and his wife were rejected as fabrication "simply on the provision [by them] of a more expanded later account of circumstances" which gave information not recorded in arrival interviews conducted by an officer of the Department of Immigration and Multicultural Affairs. The arrival interviews were conducted on 10 May 2001. Counsel contends that: "By rejecting the applicant's claims essentially because they were not put fulsomely and in detail at the initial interview and thereby jumping straight to a conclusion of fabrication the Tribunal effectively asserts that it has no real doubt that its findings were correct and has thereby avoided having to undertake the 'what if I am wrong' analysis." 6 The process of reasoning of the Tribunal, and its mode of expression in its conclusions, are characterised by counsel as an attempt to make the decision review proof which, in the context of the Tribunal's reasons for decision as a whole, is itself an indicator that the Tribunal's task was not undertaken in good faith. 7 Counsel contended that the present case, like SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547, is a case where it is possible to determine from the reasons for decision that the Tribunal has approached its review of the applicants' claims on the basis that it should look for reasons why it could reject those claims. In SAAG Mansfield J reached the conclusion at [36] that: "[the Tribunal's] reasons overall show that it did not address the applicant's claims by asking whether he has a well-founded fear of persecution for a Convention reason, but in substance by asking whether there was evidence which would enable it to reject the applicant's claims. That conclusion is reached notwithstanding that in its consideration of the definition of 'refugee' it has referred to the relevant decisions of the High Court and notwithstanding that, at the commencement of the 'findings and reasons'section of its decision the Tribunal quotes the observations of Gummow and Hayne JJ in Abebe [v The Commonwealth (1999) 197 CLR 510] at 577 – 8 … At no point in its reasons thereafter do those considerations appear to attract any attention. Instead, each of the factors upon which the Tribunal relied to reject the applicant's claim as to his nationality demonstrates upon analysis in the ways I have referred to above a rigid and at times inexplicable finding adverse to him …" His Honour had identified in the Tribunal's reasons for decision a selective and unfair use of the opinions of one Dr Maley, an expert on Afghanistan, in a way which did not appear to admit of mere error or wrong headedness on the part of the Tribunal. His Honour had also identified other aspects of the reasons for decision which were difficult to understand in light of the information before the Tribunal. 8 Counsel contended that it was not necessary to demonstrate actual bias on the part of the Tribunal to establish that its decision was not a bona fide attempt to exercise its power. However, the submissions that the Tribunal pre-judged the ultimate issue, and approached the review on the basis that it should look for reasons why it should reject the claims of the applicant and his wife, necessarily involve an accusation of actual bias on the part of the Tribunal. 9 Actual bias may be subconscious, provided it is real, and may be established by inference from the circumstances including the decision itself: Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71 at 126 – 127 per Burchett J and at 134 – 135 per North J; Singh, Sarbjit v Minister for Immigration & Ethnic Affairs [1996] FCA 902 at 6; Re Minister for Immigration & Multicultural Affairs; Ex parte "A" [2001] HCA 77 at [35] – [37] and Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885. I discussed these cases in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668. 10 In the present case the Court is invited to hold that the above submissions are made good by inference from a consideration of the reasons for decision. Apart from the reasons for decision, no evidentiary material is advanced by the applicant to show that the decision-maker had an actual state of mind adverse to the applicants. There is no allegation of a lack of honesty or improper purpose on the part of the member who constituted the Tribunal, nor is it suggested that the member demonstrated a hostile or adverse attitude to the applicant's claims during the hearing at which the applicant and his wife were invited to give oral evidence. 11 Absent some additional reasons for doing so, in my opinion it will be a rare and exceptional case where actual bias or a failure to perform a bona fide attempt to exercise power can properly be inferred from the published reasons for decision. As I explained in SCAA, reasons for decision reflect conclusions reached at the end of the decision making process. If the decision, properly reached at that stage, is against the party challenging the decision, the expression of adverse findings is an inevitable part of the expression of the reasons. If adverse conclusions as to the credit of that party form part of the reasons for decision, adverse credit findings are also a necessary part of the expression of the reasons. The expression of adverse findings at the end of the proceedings, without more, gives rise to no inference as to the mind-set of the decision-maker before and whilst the matter was under consideration, nor of pre-judgment of the issues falling for decision. It is important to the understanding of the decision in SAAG, on which counsel for the applicant placed reliance, that the trial Judge was satisfied that the impugned reasons for decision were not merely adverse, but displayed at times inexplicable findings against the applicant. 12 In evaluating whether findings made by the Tribunal, as recorded in the reasons for decision, are inexplicable or reflect a selective or unreasonable use of written materials or oral information obtained during a hearing, it is, of course, necessary to have regard to that material or information. The written material that was before the Tribunal is available to the Court in "the green book" filed by the Minister. Insofar as one of the parties seeks to have the Court refer to evidence or verbal exchanges which occurred during a Tribunal hearing, that party must place a record of the hearing before the Court. This is usually done by affidavit exhibiting a transcript of the hearing. 13 I turn now to the reasons for decision in the present case. The information before the Tribunal comprised the departmental file which included a record of the arrival interviews, the protection visa applications (including supporting signed statements from the applicant and his wife dated 26 August 2001), written submissions to the Tribunal prepared by the applicant's solicitors, oral information elicited at hearings conducted by the Tribunal under s 425 of the Act, and written information supplied in response to notices under s 424A given by the Tribunal following the oral hearing. 14 At the arrival interview, the applicant said that he was aged sixty-one. He had undergone five years of primary education and then followed the occupation of a goldsmith and jeweller, owning his own business in Ahwaz until 2001. He said he had eight children ranging in age from thirty to eleven years. He said he left Iran because there is "too much pressure" because he and his family are not Muslim. When asked what he meant by "pressure", the applicant gave instances of discrimination to which he and members of his family were subjected by Muslims, including in schooling and under the legal system. He was asked if the authorities ever visited his home. He said that they had not because "we do not do anything wrong". He complained that people did not respond to their greetings. People would not touch them, and they were verbally insulted. He was asked if these were the only reasons he left Iran. He said that he had suffered ever since childhood. His children are now married and he has peace in his mind, but he said he could not take anymore. When asked if he had reasons for not wanting to return to Iran he said that he did not wish to because he had been "suffering a lot" for the reasons given and so had his wife and daughter. He said he would be imprisoned upon return to Iran because he had left Iran. He said that whilst he left on a valid passport, he had told the authorities that he and his family were just going as tourists. 15 The applicant's wife in her arrival interview was asked why she left Iran. She said there was no respect for her religion: "They take our children to mosque and ask them to convert to Islam". This was done by the Islamic clergy in cooperation with the schools. Their children were not allowed to attend university unless they signed that they are Muslims, and did so with parental consent. Her children had not been forced to convert, although they were encouraged to do so. She is called an "infidel" when she goes to the school to see the teachers. She was asked if anything personally happened to her that made her want to leave. She said that when she goes to shops and touches food she is told that she contaminates it as she is not a Muslim. The same thing happened at home when she washed the yard and water ran onto the property of the neighbours. She said she left Iran because she fears for herself and her children. She had to let her children marry early because they are protected in a family situation from pressure to convert to another religion. She said she began to plan to leave Iran a few years ago when she noticed the Muslims were bothering her. When asked if she had any reason for not returning to Iran, she gave no reason. 16 In the written statements given three and a half months later in support of their visa applications, more information in support of their claims was given by the applicant and his wife. 17 The applicant expanded upon the information he had given about his family and about his employment as a goldsmith. He said he had been discriminated against and harassed in Iran ever since he was a child because he was a Sabean Mandean. Instances of discrimination included people coming into his jewellery shop and refusing to pay. He said they would encourage their children to urinate in his shop. After buying gold they would pour water over it to purify it from "infidel Sabeans". Discrimination also included regular and constant abuse from Islamic neighbours. He said Sabeans were branded as spies because they were not Islamic. People would throw sewage and dead rats at their homes. The government had interfered with the practice of their religion by shutting off access to waterways, and two years ago the Muslims bulldozed their cemetery to make way for a parking lot, and the alternative site provided was inappropriate. 18 The applicant then described two events which caused him major detriment. These events became central bases of his claim to hold a well-founded fear of persecution for a Convention reason. These events were not mentioned by him at his arrival interview. 19 It is convenient to refer to the first of these events as the "bracelet incident". The applicant said: "In about September 2000, a lady came to my shop and asked me to repair some bracelets. I fixed them and I used tissues to put them on her to test them. In that time her husband walked in and said 'you infidel what are you doing to my wife? Why are you touching my wife?' She said that I was just putting the bracelets on her arm but the husband accused me of sexually assaulting his wife. I was assaulted by her husband and the police took me to the police station. I stayed in the cells overnight and was taken to court the next day. The judge sent us to the religious court. The religious judge said 'why are you, an infidel, touching this women?' I said that I had six daughters and she was like a daughter and I was just fitting the bracelets on her. I had to pay a fine of 10 million and be whipped 30 times. I appealed to him not to whip me as I was old and he said that I would pay a further 3 million instead of being whipped. I was forced to close the shop and forbidden to open the shop again. I took my gold and closed the shop but I traded in the streets as I could not open a new shop. I told my married children to stay away from me in case it caused them problems." 20 It is convenient to refer to the second event as the "neighbour incident". The applicant said: "In about January 2001 there was another problem in Iran. After we clean our house we let the water used to drain out of the house. People said that they washed to purify but we Sabians make them unclean by making them walk through the water we have used. One neighbour attacked my wife and pulled her hair because she let the water drain onto the street. I heard my wife shouting so I came out and told the woman who was beating my wife to leave my wife alone. This woman then ripped open her dress exposing her breasts and accused me of sexually assaulting her. Her husband and others came and started beating my wife and I. They broke our things and stole our possessions. They said 'you filthy Sabian have sexually assaulted this woman'. They said that if we remained in the house they would come back and kill us. I reported the matter to the police. The police said they would come back to our house to investigate but I said I was too scared to go back. The police officer went to the house but the neighbours said it was a tribal matter and not for the police to intervene so the policeman went back to the police station. The senior officer read the report but he said 'why did you attack our Moslem sister' and I said I did not attack her. He said he would send me to the religious court and I became very scared and I offered to pay him a bribe. He said to pay him 5 million and he would not send the file to the court. He said not to go back to my house but to leave. I rang my wife and told her to send the 5 million to the police. I went to my maternal uncle's place in Ahwaz. The neighbours asked where I was and she told them I was in jail. At this time she sold belongings and moved to her mother's place also in Ahwaz. We decided to leave Iran because of all the problems we had suffered as Sabians and the accusations made against me by the neighbours. I thought that if I stayed there I would be killed as the law is against us because we are not Moslems. I did not think I could live safely anywhere in Iran." 21 The applicant concluded his statement by saying: "I am afraid to return … to Iran because I am a Sabian and I have been constantly harassed and persecuted by the Islamic majority. I was wrongly accused of sexual assault and the authorities forced me to close my business. The latest threats against me meant I could not safely live in my home and the police would not protect me. The Moslems consider us like dogs or pigs." 22 The applicant's wife in her statement also gave further details of her family background and examples of discrimination which she had experienced in her day-to-day life as a Sabean Mandean, including the problems earlier mentioned about touching food in shops and the encouragement of her children at school to convert. She mentioned rubbish being deposited in their yard. The three events indicative of persecution which had not been mentioned at the arrival interview were also described by her. 23 It is convenient to refer to the first of these events as "Laleh's university enrolment". She said: "About a year before we left Iran, a woman who was friendly to my daughter Laleh, gave her a letter suggesting there was a meeting for my daughter to enrol in University. I signed it but I cannot read Farsi. The next day my daughter was taken away from me. I went to my son-in-law's house and asked him to help me locate the daughter. He asked if I had signed a paper and a friend of my son-in-law said he could help. They asked for 20 million for her release. We paid it and she was released and was married 15 days later." 24 It is convenient to refer to the second event as her "brother's death". She said: "In my family we have four sister and a brother. My brother was a doctor and he was not allowed to set up his own surgery and he could not work with the government because he was Sabian. A private hospital employed him but he did not reveal the fact he was Sabian. The Registrar realized he was a Sabian and tried to induce him to convert by offering promotion. He would say 'we are going to heaven but the infidel are filthy, you should convert'. He did not convert and was sacked. People convinced him to go to Teheran. Four people invited him to Zafaranieh, out of Teheran. He told his wife he was invited out to talk about setting up a surgery. He was found dead, he had been pushed off the mountain. I don't know if there was any police investigation. His wife was approached and told not to ask for any investigation or she would be treated worse. His death hurt me a great deal, we Sabians are treated as animals." 25 It is convenient to refer to the third event (or rather, events) as the "attempted abductions". She said: "About two years ago, I was walking down to the shops with my daughter when a man came up behind me and grabbed me. He put his arms around me and held me very tightly. I was very scared. Another woman yelled out 'what are you doing' and he said 'don't worry, she is a Sabbian, so whatever we do is Halal (legal)'. I felt that he was sexually abusing me and I was very embarrassed. I told my child not to tell my husband and I have never told my husband about this incident even to today." and: "About 5 months before we left Iran, two men on bikes grabbed me and tried to take me away. I screamed and people came out and these men fled. I was afraid to go to the shops and would send my husband and son to do the shopping." 26 The applicant's wife also gave information supportive of the bracelet incident and the neighbour incident which the applicant described in his statement. She said that he had been forced to close his shop because of accusations against him by a Muslim, made because he was a Sabean Mandean. Her account of the neighbour incident was in terms closely similar to that in the applicant's statement. 27 Before the hearing arranged by the Tribunal to receive oral evidence, the applicant's advisers submitted a report from a psychologist who had been treating the applicant and his wife at the detention centre. The report advised that the applicant's wife was suffering from a major depressive disorder and panic attacks, a condition which pre-dated her arrival in Australia. The psychologist said that her condition, and difficulties which she and the applicant reported about communications through the Farsi interpreter who assisted with their arrival interviews (the applicant and his wife being primarily Arab speakers) "doubtless contributed to the 'discrepancies' noted by the DIMA delegate". The delegate, in his original decision to deny the applicant and his family protection visas, had placed weight on discrepancies between the arrival interviews and the later statements made in support of the visa applications. The psychologist's report said that the applicant's wife had reported to him that at the time of the arrival interview she was very sick and weak, and the applicant had said that he was really scared at his interview. 28 At the Tribunal hearing the applicant gave evidence. He said that he had been scared and concerned at the time of his arrival interview. The Tribunal put to the applicant that, although the arrival interview was conducted with the aid of a Farsi interpreter, he nevertheless gave a detailed statement. The applicant said he had sent letters to DIMA afterwards complaining about the difficulty with the interpreter. The Tribunal put to the applicant that he had made no mention whatever of the bracelet incident, or the neighbour incident during the arrival interview, and sought an explanation. The applicant said that he had been told by the smugglers not to mention his problems, and there had been a lot of Muslims on the ship on the way to Australia that made him scared to mention these things. He said he was really scared at the interview that he would be sent back to Iran. The Tribunal asked why, if he was scared about going back to Iran, he would not tell the interviewer about the worst things that had happened to him. He replied that he was "dizzy and scared" and did not know what to say. 29 The Tribunal read to the applicant extracts from country information which suggested that the level of discrimination suffered by Sabean Mandeans in Iran was not as serious as the applicant suggested. Generally, the applicant maintained that the situation was as he had described it. 30 The applicant said that he had been effectively banned from opening another shop after the bracelet incident because the husband of the customer had said that if he saw the applicant he would kill him. The Tribunal put to the applicant that if the husband had wanted to harm him he could have done so in the six to seven months which elapsed before the applicant left Iran. The applicant said that the husband wanted to kill him and was waiting for the right time. 31 In the course of discussing part of the country information the Tribunal referred to a reported speech by Ayatollah Yazdi. The applicant said that he had been called "Sobbi Sobbi" in the street and had been assaulted after the speech, and had also been stoned. He was asked why these assaults had not been earlier mentioned. He said that he was distracted and his mind was frozen and he could not remember everything. 32 In relation to the neighbour incident, the Tribunal said that it seemed very uncharacteristic of Muslim women for the neighbour's wife to have acted as the applicant alleged. The applicant said that incident occurred in her home, and that his account was true. The neighbour and his clan or tribe would execute him. The applicant maintained that he would be executed and stoned because of the neighbour incident, and also because of the bracelet incident. 33 The Tribunal said to the applicant that it found his claims and evidence regarding the bracelet incident and the neighbour incident to be "unreliable", and had difficulty accepting them as credible. The applicant was asked if he wished to comment. The applicant replied by asking rhetorically whether the Tribunal believed that at his age he could lie. 34 The oral hearing, at which the Tribunal invited the applicant's wife to give evidence, lasted only a short time. She told the Tribunal that the smuggler told them not to talk to anyone on the boat, and she was unaware of what to expect when she arrived in Australia. The Tribunal said that it appeared that she had made a detailed statement at her arrival interview giving reasons why she had left Iran. The Tribunal asked if she could explain why she made no mention about Laleh being forced to convert to Islam or that her children had been taken to the Mosque. The applicant's wife stated that she had said that her children were taken to the Mosque from the school and that they were taught Islamic studies in theology. The interview did not proceed beyond this point as the wife was distressed, and the Tribunal decided in consultation with the applicant's wife's adviser that the Tribunal would pose questions in writing by way of a notice under s 424A. 35 Notices under s 424A were sent to both the applicant and his wife, in substance inviting comment on the inconsistencies between their arrival interviews and their August 2001 statements. In the case of the notice to the wife, reference was made to the brother's death incident and the attempted abductions as well as to the failure to mention her children being taken to the Mosque and Laleh's university enrolment. 36 The written response to the notice made on behalf of the applicant's wife said that she had been suffering psychologically for some years; that she had a difficulty with the Farsi interpreter at the arrival interview; that she was afraid that the interpreter would make allegations against her; and that she did not mention the attempted abductions because in her culture to attack a woman is very embarrassing. 37 In a subsequent letter to the Tribunal the applicant's wife added that the smugglers had threatened them on the boat not to say anything about how they were treated in Iran. She said that the interpreter was an Iranian and a Muslim and she felt very afraid when speaking with her. She again said that she had mentioned that her children were taken to the Mosque, but was scared to say that her daughter, Laleh, had been forced to convert to Islam because she did not want her husband to find out she had been tricked into signing the document about her daughter's conversion. She said that she did not mention her brother's death because talking about it frightened her and she was intimidated in front of a Farsi speaking Muslim interpreter. She did not mention the attempted abduction matters because she was scared and confused in her initial interview. She is an old woman, and she did not want to mention it because she did not want her husband to know. In relation to country information mentioned in the s 424A notice which the Tribunal said suggested that Sabean Mandeans did not have a problem with Muslims and generally got along with them, the applicant's wife said that the neighbours were fanatical Muslims who did not speak to them save to call them "infidels", and that Muslims did not treat Sabean Mandeans as "people of the book". 38 The applicant in response to the notice to him, said that he had not mentioned the bracelet incident or the neighbour incident because he was scared during and after the initial interview because he did not fully understand the interpreter; because he was afraid the interpreter would report him to the Iranian authorities; and because the smuggler had told him not to talk about his problems. He said his adviser had later encouraged him to speak frankly and openly about his experiences in Iran, and he had then done so. 39 The Tribunal, in its findings and reasons, considered the applications of the applicant and that of his wife separately. However, the Tribunal's conclusion in each case that neither of them held a well founded fear of being persecuted was reached for similar reasons. The submissions of counsel for the applicant summarised earlier in these reasons are made in criticism of the rejection of each of their claims. In essence, the Tribunal rejected the explanations offered by the applicant and his wife for the inconsistencies between their arrival interviews and their later statements which accompanied their visa applications. The Tribunal did not accept the major claims first advanced in the later statements as credible. The Tribunal said it was in no doubt that these claims were fabricated. In its consideration of the other claims of discrimination which were mentioned by the applicant and his wife in their arrival interviews, the adverse findings as to their credit on the later claims has plainly influenced the Tribunal in finding that some of the claims of discrimination are not credible, and others are not so serious as to amount to persecution. 40 It is the rejection of the applicant's claims about the bracelet incident and the neighbour incident, and his wife's claims about Laleh's university enrolment, her brother's death and the attempted abductions, which is central to the contention that the Tribunal did not make a bona fide attempt to exercise its power. The criticisms of the Tribunal's rejection of these claims include contentions that the adverse credibility findings were based either on no or minimal grounds, and that rejection of the new claims on the basis of inconsistency was unjustified as the later statements were "a more expanded later account of circumstances". 41 In my opinion there is no basis for the suggestion that the applicants' later claims were an expanded account of circumstances mentioned in the arrival interviews. No hint of these claims was given in the arrival interviews. The later claims were new claims. 42 At the hearing at which the applicant gave evidence, it is plain that the Tribunal was concerned about his failure to disclose the bracelet incident and the neighbour incident at the first interview. It was appropriate that an explanation for this failure be sought in the course of the hearing. Indeed, the Tribunal would have failed to extend procedural fairness to the applicant had it not offered him the opportunity to explain this omission. The applicant gave his explanation both orally and later in response to the s 424A notice. In its findings and reasons, the Tribunal recorded his explanations, and then gave the following reasons for rejecting them: "The Tribunal does not find the applicant's explanation to be reasonable or plausible. The Tribunal has read and listened to a recording of the applicant's initial interview. The Tribunal notes that contrary to his assertion that he could not fully understand the interpreter, at the commencement of this interview the applicant stated that he could understand the interpreter because he speaks both Arabic and Farsi. The Tribunal further notes that the interpreter used in the initial interview is a NAATI Accredited, Level III interpreter, and there is no suggestion from the record of interview and tape recording that the applicant had any difficulty understanding the interpreter or expressing himself. Finally, although not determinative of itself, from the Member's own personal experience in using this interpreter on numerous occasions, it is her practice to declare any communication difficulties with an applicant without delay and as they arise. She did not do in this initial interview. With regard to the applicant's other explanations for his failure to make these important claims at his initial interview, the applicant asserts that he believed the interpreter was Moslem and Persian and was inhibited by this belief. The Tribunal finds this explanation to be implausible because in the ensuing interview the applicant appeared to have no hesitation in making deprecatory comments about the Moslem majority and their attitude towards and treatment of Sabian/Mandaeans. The applicant also claimed by way of explanation that 'most of the people on the boat were Moslems and this affected his ability to detail his claims in the initial interview' – however the Tribunal notes that the only people present at his initial interview were himself, the interviewer and the interpreter – 'most of the people from the boat' were not present. Whilst the applicant may have been advised by his legal representative to speak frankly and openly later in the determination process, the applicant was advised to do so in his initial interview." The Tribunal has given reasons for its rejection of the applicant's explanation for the inconsistency in his statements. In my opinion the reasons do not give rise to an inference of pre-judgment or failure to approach the claim with an open mind. On the contrary, having received the applicant's explanations, the Tribunal appears to have taken the step of listening to the recording of the initial interview. That would have been an unlikely step to take had the Tribunal already determined that the claims should fail because they were not made at the first available opportunity. 43 Counsel for the applicant contends that in placing the significance which it did on the failure to make the claims in the initial interview, it failed to heed the need for caution identified in Abebe v The Commonwealth (1999) 197 CLR 510 at 577 by Gummow and Heyne JJ. Their Honours at [190] – [191] said: "Inquiring whether a person has a well-founded fear of persecution is attended by very great difficulties. It is as well to begin such inquiries from two premises that, while obvious, may possibly be overlooked. First, the fact that a person in the applicant's position does not complain of rape to the first immigration officer who speaks to her on arrival in this country, a country in which she seeks asylum, is anything but compelling evidence that no such assault occurred. Even if the 'primitive rule of hue-and-cry' spoken of by Wigmore in connection with doctrines of recent complaint in cases of rape may once have had some basis in the society in which it grew up, there is no warrant for some unthinking application of such a rule to a person from a wholly different society coming to a new country in which she seeks asylum, leave aside the fact that the rape may have occurred months if not years ago as one more horror in a history of horror. Secondly, the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision." A reading of the Tribunal's reasons as a whole does not lead me to think that the Tribunal was unaware of the difficulties which asylum seekers may face at initial interviews. Where later serious claims are made that were not mentioned at the first interview, it is for the Tribunal to determine what significance is to be placed on that fact. In the present case the complaints which the applicant made about the bracelet incident and the neighbour incident are unlikely to have engendered in him the difficulties which a rape victim is likely to experience in recounting the event. Further, in this case, the issue for the Tribunal was not whether an adverse finding as to credit made on a topic that was peripheral to the central claim should lead to the rejection of that claim. The issue here was whether the central claim itself should be accepted having regard to the fact that it was not made in an interview obviously directed to ascertaining whether the applicant qualified for recognition as a refugee. 44 The Tribunal has given cogent reasons why it considered the claims about the bracelet incident and the neighbour incident were fabricated. The adverse credit finding was in reality a consequence of a finding of fabrication, reached for the reasons given by the Tribunal. The rejection of those claims was not dependent upon an adverse credit finding otherwise made. 45 Similarly, the adverse finding of credit in the case of the applicant's wife was a consequence of findings that her claims about Laleh's university enrolment, her brother's death and the attempted abductions were fabricated claims belatedly made to enhance her claim to be a refugee. The Tribunal also listened to the recording of her initial interview as part of its consideration of her explanations for not making these claims at that time. In respect of her explanations, the Tribunal said: "The Tribunal notes that contrary to the applicant wife's assertion that she could not understand the interpreter, at the commencement of this interview the applicant wife stated that she understood the interpreter, she had no objection being interviewed in the Persian [Farsi] language, and when asked if she understood what was being said to her she responded that she 'understood what had been said but she could not repeat exactly what the interviewer said'. The Tribunal further notes that there is no suggestion in either the written or tape recording of the initial interview that the interpreter was anything but professional – there is no suggestion of the interpreter laughing at or abusing the applicant wife or making sarcastic jokes. There is no suggestion either of the applicant wife 'pleading' for an Arabic interpreter. With regard to the applicant wife's other explanations for her failure to make these important claims at her initial interview, the applicant wife asserts that she believed the interpreter was Moslem and Persian and was scared of her, and inhibited by this belief. This assertion is gravely undermined by the fact that the applicant wife appeared to have no hesitation in making deprecatory comments about the Moslem majority and statements about their attitude towards and treatment of Sabian/Mandaeans in the ensuing interview." Counsel for the applicant asked rhetorically how would the Tribunal know that the interpreter was not laughing at or abusing the applicant or making sarcastic jokes, as the interpreter would have done so in the Farsi language. This question is not without substance, although if the interpreter had been laughing that would have been audible. However, for the purposes of the attack levelled at the Tribunal, the significant fact is that the Tribunal went to the length of listening to the tape, and concluded that it did not support the complaint made by the applicant's wife about the interpreter. To rely on the conclusion so reached is not indicative of pre-judgment or a want of good faith in the exercise of the decision making process. 46 Having rejected these major claims, the Tribunal went on to say that it found it "utterly implausible that the applicant [applicant's wife] failed to mention claims of such gravity – even indirectly – at the outset. The Tribunal cannot be satisfied that the applicant [applicant's wife] has been truthful about these claims, and finds him [her] to be – in this regard – an utterly unreliable witness". The rejection of the claims and credit findings are expressed by the Tribunal in strong terms, but that in itself is not indicative of pre-judgment or actual bias. The Tribunal has given reasons for its conclusions. 47 In the case of both the applicant and his wife, the Tribunal considered the complaints of discrimination which had been raised at the arrival interviews. In making findings on these matters, the Tribunal was substantially influenced by country information reports, which are recited at some length in the reasons for decision. Counsel for the applicant is critical of the way in which the Tribunal put country information to the applicant in the course of his evidence. It is said that passages from the reports that were put to him were selective, and that when the full reports are read they convey a picture that is more supportive of the applicant's claims than the selected passages. With that proposition I agree, but I do not think this is a legitimate criticism of the Tribunal. What the Tribunal did was to pick out passages that were not supportive of the applicant's claim and to seek the applicant's comment. However, in the reasons for decision the country information is more extensively, and fairly, recited. I am not persuaded that the Tribunal's findings, based on the country information, are the product of unfairly selective use of the material. 48 On the claims of discrimination made by the applicant, the Tribunal held: "The Tribunal finds that as a religious minority in Iran, the Sabiab/Mandaeans community faces some discrimination, and that as individuals, Sabian/Mandaeans may thus face some discrimination. The Tribunal is supported in this finding by the independent evidence [see above]. The Tribunal accepts that the applicant may have been verbally abused by the Moslem majority because he is Sabian/Mandaean, and he may have been spat at in the street, that children may have urinated in his shop, that he had to dry up after himself [when using public facilities with water], that some people may have refused to greet him. The Tribunal finds that these occurrences are unpleasant but do not consider that such treatment amounts to 'serious punishment or penalty' or 'significant detriment or disadvantage' [see McHugh J in Chan's Case]and therefore does not amount to persecution for the purposes of the Convention." In this finding the complaints made by the applicant in his arrival interview are, by and large, accepted. In relation to the applicant's complaints about the practice of his religion, the Tribunal found: "The Tribunal accepts that one of the Mandaean places of worship has been closed, and that because of this, the community was inconvenienced. It notes however, that according to the independent evidence, they have been able to continue to perform their essential religious rituals including baptisms and marriages and the applicant himself has stated that he has attended the Mandee in Ahwaz for worship, married according to the rites of the Church, and has been baptized according to the tenets of the Sabian/Mandaean church. Whilst the applicant and the Sabian community as a whole may have faced some inconvenience, disruption and limitations in practising their religion, the Tribunal cannot be satisfied that the inconveniences, disruptions or limitations prevented the applicant from practising the essential aspects in his religion in Iran prior to his departure or that he faced harm amounting to persecution for reason of his religion. Furthermore, the Tribunal cannot be satisfied that he would face harm amounting to persecution upon return to Iran for reasons of his religion." 49 In my opinion these findings were reasonably open on the country information reports, and are not indicative of a selective search for evidence that would enable the Tribunal to reject the claims. 50 The Tribunal went on to consider a number of other claims of discrimination alleged by the Tribunal, but rejected them on the ground that they were contrary to, or not supported by the country information. The Tribunal also rejected claims based on an asserted fear of repercussions for having left the country illegally and for having applied for refugee status in Australia. Again, those findings are in accordance with the country information and taken individually are not indicative of other than the proper exercise by the Tribunal of its function. In the case of the applicant's wife, similar findings were made about her complaint of discrimination in the practice of her religion. Her claim that she suffered "constant abuse" from her Muslim neighbours and Muslims in general was found to be a gross exaggeration, and contrary to the country information. 51 Finally, the Tribunal considered documents that had been submitted to it by the applicants. Insofar as these documents sought to describe the position of Sabean Mandeans in Iran, the Tribunal preferred to act on the country information available to it through the CISNET database. In relation to the report from the psychologist the Tribunal said: "… in light of the fact that this report is reliant on the applicant wife's testimony – which the Tribunal has found to be lacking in credibility – the Tribunal cannot rely on this report and gives it no weight." That was perhaps a harsh assessment of the expert opinion of the report's author – at least insofar as it referred to the mental condition suffered by the applicant. However, the Tribunal had listened to the tape of the arrival interview and formed its own opinion about her behaviour on that occasion, and the report does not offer a compelling reason why the applicant would have failed to mention the substantive claims which she later advanced. Insofar as the report seeks to bolster the veracity of the claims about Laleh's university enrolment, it was entirely reliant on the applicant's testimony, and to give it no weight was consistent with the Tribunal's earlier finding. 52 I have discussed findings made by the Tribunal on individual components of the claims by the applicant and his wife, but I do not overlook that the attack on the Tribunal's decision is that, when taken as a whole, the aggregate of adverse findings gives rise to the inference of pre-judgment, and demonstrates the want of a bona fide attempt to exercise power. Most, but not all of the conclusions reached by the Tribunal are adverse to the applicants, but, as I pointed out earlier in these reasons, that is hardly surprising in the case of a decision giving reasons for a conclusion that the applicant does not have a well founded fear of persecution for a Convention reason. 53 I am not persuaded that the decision of the Tribunal was not a bona fide attempt to exercise power. In my opinion the challenge to the decision is not made out, and the application must be dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa. Associate: Dated: 19 August 2002 Counsel for the Applicant: Mr K G Nicholson Solicitor for the Applicant: Refugee Advocacy Service of South Australia Counsel for the Respondent: Mr K Tredrea Solicitor for the Respondent: Sparke Helmore Date of Hearing: 30 May 2002 Date of Judgment: 19 August 2002