W396/01 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 103; [2002] FCA 455 (19 April 2002)

Last Updated: 9 May 2002

W396/01 v Minister for Immigration and Multicultural Affairs

[2002] FCAFC 103

W396/01 v Minister for Immigration and Multicultural Affairs [2002] FCA 455

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)

The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

W396/01 v Minister for Immigration and Multicultural Affairs

[2002] FCA 455

IMMIGRATION - Application for protection visa - Sur place claim by Iranian national - Consideration by Tribunal of most individual elements of applicant's history - Elements included applicant's military service at Iranian missile site - Failure to consider significance of ASIO interview of applicant - Failure to consider effect of interplay of circumstances accepted by Tribunal - Significance of fact that applicant did not invite Tribunal to look at case in that way.

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 followed.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

referred to.

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

referred to.

W396/01 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W396 OF 2001

BLACK CJ, WILCOX & MOORE JJ

19 APRIL 2002

SYDNEY (heard in Perth)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W396 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	W396/01 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BLACK CJ, WILCOX & MOORE JJ
DATE OF ORDER:	19 APRIL 2002
WHERE MADE:	SYDNEY (heard in Perth)

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made by the primary judge on 24 August 2001 be set aside and, in lieu thereof, it be ordered that:

(a) the application for review be allowed;

(b) the decision of the Refugee Review Tribunal dated 1 March 2001 be set aside;

(c) the applicant's application for review be remitted to the said Tribunal for rehearing and determination according to law;

(d) the Tribunal be differently constituted for the purposes of the rehearing; and

(e) the respondent pay the applicant's costs of the application.

3. The respondent pay any costs incurred by the appellant in connection with the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W396 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	W396/01 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BLACK CJ, WILCOX & MOORE JJ
DATE:	19 APRIL 2002
PLACE:	SYDNEY (heard in Perth)

REASONS FOR JUDGMENT

THE COURT:

Introduction

1 This is an appeal from a decision of a judge of this Court given on 24 August 2001 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 1 March 2001. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") not to grant the appellant a protection visa under the Migration Act 1958 (Cth) ("the Act").

Background

2 The appellant is a 29 year old man and is a citizen of Iran. He arrived in Australia by boat on 27 June 2000 and lodged an application for a protection (class XA) visa on 16 October 2000. The appellant claimed that he would be subject to persecution as a result of his political opinions both real and imputed if returned to Iran. His account of his experiences in Iran was as follows.

3 The appellant said that, while attending the University of Shiraz, he was lectured by Dr Zad Mehr with whom he formed an ongoing friendship. The pair often engaged in political discussions. After graduating from the University of Shiraz the appellant enrolled in a post-graduate course at the University of Amirkabir. At that University, as part of the appellant's involvement in activities and discussion of a political nature, he organised for a guest speaker, Dr Soroush, to attend a seminar. The seminar was attacked by pro-government militia groups. The appellant claimed it led to his expulsion from the University one month later.

4 The appellant was then, in 1997, conscripted to do his military service. He was assigned to a sensitive security position in the missile section of the Defence Ministry. During the period of his military service, the appellant also worked part-time in the Oil Industry Research Centre. He completed military service in January 1999 and thereafter worked as a computer hardware engineer.

5 Throughout the period of his military service, the appellant remained in contact with Dr Zad Mehr. In May 2000, the appellant learnt that a person whom he took to be Dr Zad Mehr had been arrested and accused of spying for Israel. This frightened the appellant because of his close links with Dr Zad Mehr and information he had disclosed to him about missiles. The appellant, and some of his friends from Shiraz University who had also been close to Dr Zad Mehr, decided that they had to leave Iran immediately. The appellant and two friends did so legally on 6 June 2000. A third friend, Saeed, who could not afford the journey remained behind.

6 From Iran, the appellant and his two friends travelled via Malaysia to Indonesia from where they arranged passage to Australia by boat. While in Indonesia, the appellant contacted another friend in Iran who informed him that Saeed had been arrested following the appellant's departure. This confirmed his belief that the authorities in Iran were now interested in the appellant and his friends. He feared that Saeed, or Dr Zad Mehr might have given his name under torture.

7 The appellant did not mention either Saeed or Dr Zad Mehr in his initial interview with Australian Immigration authorities which took place on 2 July 2000, five days after his arrival. In that interview, the appellant said that he was not involved with any political groups or associations and was not involved in any anti-government activities. The information about Saeed and Dr Zad Mehr was disclosed in the appellant's statutory declaration of 12 October 2000. The appellant explained to the Tribunal that he did not mention Dr Zad Mehr at the initial interview because he was afraid of giving names, he did not know if he could trust the immigration official. The appellant claims he gave all the details in a later interview with the Australian Security Intelligence Organisation ("ASIO"), by whom he had been given an assurance of confidentiality.

8 The appellant claimed that, after he lodged his application for a protection visa, he contacted his family in Iran and learnt that Saeed had confessed. He was told that the Ettela'at had raided his home and because they could not find the appellant, they had seized his younger brother.

9 Further information came to light before the appellant's application was determined by the Minister's delegate. The delegate discovered that Dr Zad Mehr had not been arrested. The arrested man, although also from Shiraz University, was an English language professor and senior religious leader with a similar name - Dr Asher Zadmehr. This information was referred to in the decision record of the delegate of 21 November 2000. The appellant accepted that the new information was correct. He did not claim to know the man actually arrested and accepted that he had left Iran fearing persecution on grounds which, it later became apparent, were not well founded. However, in a supplementary statement on 17 January, which was provided to the Tribunal and which was set out by the primary judge at para 10 of his judgment, the appellant submitted that his fear of persecution remained despite the discovery that it was a different professor who had been arrested. The appellant stated:

"1. I note what the case officer said about the English lecturer and I now accept that my fears that it was Dr Zad Mehr who was arrested may have been a big mistake. But because of the information that I had provided to Dr Zad Mehr and my association with Dr Sadaat with whom I had visited Southern Iran and who it is said, the Israelis had killed, I was justified in my very strong fear.

2. Now what I fear most and the reason why I cannot return to Iran is the arrest of our friend and colleague Saied and the report about my family which I received when I was released into the open section of Curtin IRPC about Said's arrest and the descent by Ettela'at on our family home and the arrest of my younger brother Javad. They would have searched our house. There can now be no doubt that the Ettela'at know all about me and want me for interrogation to start with. That dooms me.

...

5. The case officer used the opinion from the Foundation of Iranian Studies in Methesda, Maryland about Dr Soroush but not correctly. I am at severe risk now because I was politically active when I was involved with the invitation to Dr Soroush to address our seminar. Dr Soroush, it should be known, wrote for the magazines Kian and Iran-e-Farda.

6. ..."

10 The appellant also claimed that he feared he would arouse suspicions and face persecution from the Iranian authorities simply by having travelled to Australia. Given the nature of his army service, the appellant claimed that the authorities may suspect that he had divulged information about Iranian missiles while outside the country. He said that as he had destroyed his passport and would have to return without the appropriate papers, he would be even more likely to arouse suspicion.

The Tribunal's findings

11 The Tribunal did not accept any of the appellant's claims which were based on events that had occurred prior to the appellant's departure from Iran. The Tribunal found that when the applicant left Iran he did not have a well-founded fear of persecution for any Convention reason. In particular, the Tribunal did not accept that the appellant had a close political relationship with Dr Zad Mehr nor that the appellant had been involved in any political activity at Shiraz University which might give rise to a well founded fear of persecution. Likewise, the Tribunal did not accept that the appellant was expelled from Amirkabir University because of a lecture organised by him. The Tribunal was not satisfied that the appellant was politically active, either at university or any other time, in a way which had or would attract adverse attention from the Iranian authorities.

12 The Tribunal did accept, however, that the appellant had occupied a sensitive position during his military service and that he had worked part-time in the oil industry. Indeed, one of the reasons given for not accepting the appellant's claims, was that if he had a political profile that was of concern to Iranian authorities, he would not have received a sensitive military posting or have secured work in the oil industry. The Tribunal found:

"The applicant went from his university studies into military service and immediately into a sensitive security position at a missile site. If the applicant were of a recent and dubious or controversial political background in circumstances where he had come unusually (in that he did not complete his studies) to his military service he would not have been given such a sensitive posting in the military. If as the applicant claims Ettela'at had a significant adverse file on the applicant he would not have been posted to a sensitive position in the missile site. His role required him to check identification of workers and visitors to the sensitive site so it was a security position requiring a reliable and trustworthy conscript. Furthermore, at the same time he managed to obtain part-time work in the Oil Industry Research Centre using his computing skills."

13 The Tribunal did not accept the appellant's sur place claims; in particular, the appellant's claims that Saeed and his younger brother had been arrested. More generally, the Tribunal was not satisfied that the appellant had a political profile which had become of interest to Iranian authorities since his departure. In relation to problems that might arise on his return to Iran, the Tribunal did not accept that the fact the appellant no longer had a passport or appropriate travel documentation would create a risk of persecution, although the Tribunal acknowledged that the appellant may face extensive questioning on his return as a result of not having those documents. Similarly, the Tribunal found that there was no evidence that a failed asylum seeker would face significant problems from Iranian authorities as a result of having made an unsuccessful claim for protection abroad. The Tribunal did not accept that the appellant's position would be any different to that of other deportees returned to Iran, despite the fact that he had worked for a rocket testing division in the military and therefore might have been in a position to divulge confidential information while abroad. The Tribunal said:

"The applicant said that he worked in the Ministry of Defence for the rocket testing division and they may think that he will reveal some of the confidential information he guarded because he had left the country. I reject this claim. The fact that the applicant was able to do his military service in such a sensitive site is an indication that he is held in high regard by authorities. Further he previously left Iran and returned and found employment without the slightest difficulty after he finished his military service. I do not accept that simply because he departed Iran again it will be assumed that he has revealed secret information.

The applicant said that he has no passport and this may adversely affect his employment and educational opportunities should he return. The applicant obtained his passport without any difficulty, which is not uncommon for a person who has completed his national service obligations. I am not satisfied that the applicant will face any Convention difficulty obtaining replacement documents should he wish to do so. Clearly there are records available in his university, at the passport office and in the military that can assist him prove his identity and background. Further I note that in March 1996 DFAT advised: `At worst, knowledge that an individual has sought political asylum abroad would not result in much more than verbal harassment, unless the asylum seeker concerned had a high opposition political profile.' (DFAT 1996, para 1.7.6.2). A document provided by the Citizenship and Immigration Canada (CIC) in February 1998 has cited CIC officials in Iran as having -`seen no evidence that failed claimants, persons who have illegally exited Iran or deportees face any significant problems upon return to Iran' (IRB 1999). According to the US Department of State: `Citizens returning from abroad sometimes are subject to search and extensive questioning by government authorities for evidence of anti-regime activities abroad. Cassette tapes, printed material and personal correspondence and photographs are subject to confiscation' (US Department of State 2000, "Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation"). ... DFAT has advised that: `Individuals forcibly repatriated need to have an official document i.e. a passport of (sic) laissez passer. Otherwise returnees may not be accepted by the Iranian authorities' (CIS 1999c28 May (CX35272). I am not satisfied that the applicant will face persecution for reason of his lack of passport or other documentation.

...

The applicant arrived in Australia on 26 June 2000. His arrival was covered in the Australian press. An internet report from the Age newspaper shows a photo of people arriving but does to (sic) specifically identify the applicant. I am not satisfied that even if this did identify the applicant that it now gives rise to a fear of persecution. I make this finding because the evidence referred to above indicates that there is no evidence that failed claimants or deportees face any significant problems upon return to Iran. The applicant has departed Iran legally on two occasions."

Proceedings before the primary judge

14 Seven grounds of review were raised in the proceedings before the primary judge. The appellant was then legally represented. It is convenient to summarise each ground and his Honour's findings in the order in which they were dealt with by his Honour.

15 The first ground was that the Tribunal had erred by approaching the appellant's application as if it was based on two separate and distinct claims - the first arising from events prior to the appellant's departure and the second claim, a sur place claim, based on events which took place thereafter. The appellant contended that his case was based on a sur place claim and that the material and evidence presented by him should be viewed as a part of a continuum and could only be properly understood in that context. His Honour found that once it was discovered that the Dr Zad Mehr with whom the appellant was acquainted had not been arrested, it was probably technically correct to characterise his claim as a sur place claim. Nonetheless, in assessing that claim the Tribunal had necessarily given consideration to the appellant's claims in respect of his political activities in Iran prior to his departure. His Honour found that in giving consideration to such matters, the Tribunal had neither identified a wrong issue nor based its finding on irrelevant considerations.

16 The second ground was similar to the first in that it involved an assertion that the Tribunal had erred by treating the appellant's evidence of his political activities at University as if it formed the basis of his fear of persecution, rather than providing the background to fears based on a sur place claim. In particular, the appellant contended before the primary judge that the relevance of his activities as a student was that, if he returned to Iran without the correct travel documentation, an investigation would follow which would be particularly harmful for him because it would uncover information about his political activism at university. This ground failed on the same basis as the first. The primary judge noted that the Tribunal had simply not accepted that any of the appellant's activities at university were such that they would make him of interest to the Iranian authorities.

17 The third ground sought to impugn the Tribunal's finding that the appellant could not have been an anti-government activist because he would not have been posted to a sensitive missile post during his military service if he did not enjoy the confidence of the Iranian security forces. It was asserted that there was no evidence before the Tribunal to support the finding that such a posting necessarily indicated that the appellant had good standing with Iranian authorities.

18 The primary judge noted that at the hearing before the Tribunal the appellant had accepted that his position in the military had been a sensitive one and that if he was under suspicion as a political dissident he would not have been posted to that position. His Honour then concluded:

"[The Tribunal] is entitled to act upon its own knowledge, and to draw inferences on the basis of fragmented information. It was entitled to draw the conclusion which it did as a matter of common sense based upon its knowledge of the circumstances in Iran without the need for direct and specific information to that effect. There is of course a difference between mere speculation, which is impermissible, and the drawing of inferences which is both permissible and appropriate. The Tribunal's finding in this respect falls into the latter category."

19 The fourth ground sought to impugn the Tribunal's finding that the appellant could not have had a close political relationship with Dr Zad Mehr because, had such a relationship existed, the appellant would have known Dr Zad Mehr was Jewish. In his statutory declaration of 12 October 2000, the appellant had stated that he did not learn that Dr Zad Mehr was Jewish until after his arrest. It was argued before the primary judge that there was no evidence supporting this finding, that it was based on irrelevant considerations and that it was so unreasonable that no tribunal of fact would have reached it.

20 The primary judge found that the Tribunal had given sufficient reasons why it considered it implausible that the issue of Dr Zad Mehr's religion would not have arisen in the course of discussions between the appellant and Dr Zad Mehr. His Honour noted that the tension between Iran/Islam and Israel/Judaism was common knowledge. Moreover, his Honour found that even if he was incorrect on that point and the Tribunal had erred in the way contended for, it would not have impacted on the Tribunal's overall finding. That was because the Dr Zad Mehr with whom the appellant had claimed to be associated, was not in fact arrested and therefore his relationship with him would not be the source of any troubles with Iranian authorities.

21 The fifth ground raised an issue of whether, although the Tribunal had considered whether the appellant would face persecution on the basis of his lack of travel documentation alone, it erred by failing to consider if he would face persecution because his lack of documentation would alert authorities to his previous history. That history included his association with Saeed, his work in the military and in the oil industry, leading to suspicions that he had been involved in activities contrary to the interests of the state while in Australia. The primary judge found, at para 30:

"The applicant did not claim that he feared persecution by reason of his involvement in the oil industry. All other elements of this ground were the subject of specific consideration by the Tribunal which made findings adverse to the applicant's contentions in this respect. RRT considered the country information on the subject of returned asylum seekers and concluded that a person such as the applicant would not be at risk on his return. RRT rejected the applicant's claim that he was exposed to risk by reason of any association with Saeed, and rejected the claim that the authorities would assume that he had disclosed military secrets."

22 The sixth ground raised an issue of whether the Tribunal had erred by attaching significance, in a manner adverse to the appellant's case, on the appellant's failure to mention the arrest of Saeed or Dr Zad Mehr at his first interview with Australian immigration authorities. The Tribunal found that if these matters were true, rather than recent inventions, they would have been mentioned by the appellant at his initial interview. The primary judge rejected the ground on the basis that it was a matter for the Tribunal what, if any, reliance it placed on the omission. His Honour concluded that the ground was, in essence, "a complaint about the merits of the Tribunal's decision".

23 The final ground was that the Tribunal's decision was induced or affected by actual bias. The Tribunal's bias was said to be evidenced by the errors outlined in the other grounds and by the adversarial, rather than inquisitorial, manner in which the appellant's hearing was conducted. The primary judge set out several extracts from the appellant's hearing before the Tribunal which his Honour found indicated that the presiding Member was highly sceptical about aspects of the appellant's claim. Those extracts were as follows:

"Mr White: Yes, but you see, I can't believe that an intelligent, political

activist would mix up a Jewish/English language professor

with an Iran mathematics professor."

(P 9)

...

"Mr White: Yes, well, I have great difficulty believing that an intelligent political activist like you wouldn't know the difference between a Jewish Rabbi and his own mathematics lecturer who he rings up by phone quite regularly."

(P 15)

...

"Mr White: Well, you know, I just don't believe that you can be so involved with someone over several years and you can pass on information about missiles to him, but you don't even know if he is Jewish or otherwise. That is just too difficult for me to believe, I think."

(P 16)

...

"Mr White: Well, I don't think that was a mistake, was it? It was just a story that you told when you got here because you thought you could pull - you thought you could tell a story to immigration and get away with it? It wasn't a mistake, was it?"

(P 21)

"Mr White: Well, you see, I'm not sure that I believe either your friend Saeed or your brother being arrested. That's one of the things I'll consider when I'm deciding your case. Because if I don't believe that then it seems to me that you just don't have a serious case. Your advisers made some quite lengthy submissions on more general issues relating to being out of Iran as well as some submissions about the current situation in Iran and the security forces there I also need to consider more carefully. But it seems to me you are probably like so many young men in Iran today, who just want to migrate somewhere, who are educated, relatively well off but would like to do well financially and can do much better in a western country than they can at home." (Emphasis added by the primary judge)

24 The primary judge then set out a further passage from page 24 of the transcript as follows:

"Mr White: Well, I mean, you spent a lot of money coming to Australia. I can appreciate that. But the trouble is that you didn't - it seems to me that you - you didn't just make a mistake about your lecturer, but you actually made up a story because you thought it would help you. And the reason you didn't mention Saeed's arrest at the first opportunity was that it didn't happen and that you needed more time to make up a story. So these are the decisions that I have to make when I come to deciding your case, which I'd hoped to do in the next week or so. I haven't made a decision yet but I'm just trying to point out to you some of the crucial areas that I'll be thinking about when I come back to decide your case." (Emphasis added by the primary judge)

25 His Honour concluded that on a fair reading of the transcript, the claim of actual bias was not made out. His Honour found that the approach adopted by the Member, which involved directing the appellant to perceived problems with the evidence, was open to him and not reflective of bias. Rather, the approach adopted afforded the appellant the opportunity to address squarely perceived deficiencies in his case. The primary judge found that the Member remained open to persuasion on the preliminary doubts he expressed. He said, in the passage from page 24 of the transcript quoted above, the Member was putting one possible and legitimate interpretation of the applicant's circumstances to him for comment.

26 Having found against the appellant on all grounds raised, the primary judge dismissed the appellant's application with costs.

Issues in the appeal

27 At the hearing of the appeal, the appellant appeared in person with the aid of an interpreter. Prior to the hearing he submitted lengthy hand-written submissions. Although the appellant appears to have a good command of written English, he has no legal training and most of the material contained in his submissions sought to challenge the merits of the Tribunal's decision. The submissions did not clearly identify error on the part of the Tribunal or the primary judge of a type this Court has jurisdiction to consider. The appellant also put before us the reasons of the Tribunal (differently constituted) in relation to the applications of his two friends who had arrived on the same boat and who made similar claims to the appellant. Although the appellant is aggrieved that the Tribunal in that case determined that there was a real chance of persecution should the applicants, his friends, be returned to Iran, no basis has been established in this matter for the Court to take into account that material in assessing whether there was an error of law on the part of the Tribunal in relation to the appellant's claim. In this matter, the other cases are irrelevant.

28 One ground of appeal, however, did emerge from the appellant's submissions. In essence, he contended that the primary judge had erred by not finding that the Tribunal had failed to address his sur place claim that he would be subject to persecution on the basis of an imputed political opinion if returned to Iran because, he said, a person with his particular history who had travelled to Australia, made a claim for asylum, been interviewed by ASIO and then been returned to Iran without travel documentation, would be suspected of conspiring against the Iranian authorities by having divulged confidential information while in Australia.

Consideration of the lastmentioned ground

29 It is convenient to set out certain facts which appear to have been accepted by the Tribunal or do not appear to have been in issue before it:

* The appellant was placed in a sensitive military posting at an Iranian missile site during the period of his military service from 1997 to 1999.

* The appellant worked part-time in the oil industry in Iran during the period of his military service.

* The appellant has made an application for asylum in Australia. This fact might be known or might become known to Iranian authorities. (The Tribunal did not reach a conclusion on whether the Iranian authorities might be aware or become aware of the appellant's application for asylum because it did not regard the mere fact of his having made an application for asylum, as giving rise to a fear of persecution for a Convention reason on return to Iran.)

* The appellant has been interviewed by ASIO while in immigration detention in Australia. (The Tribunal did not consider whether this fact might be known or might become known to Iranian authorities.)

* The appellant destroyed his passport and travel documentation before his arrival in Australia, and if returned to Iran will have to do so without documentation or with new documentation.

30 It is also convenient to set out the claims, relevant to the above facts, which were before the Tribunal:

* In the appellant's Unauthorized Boat Arrivals Bio-Data Questionnaire the appellant was asked: "Do you have any reason for not wishing to return to your country of nationality?" He responded as follows:

"During MS conscription I worked in the Ministry of Defence for the Rocket Testing Division & I return & they find out I was here, they may think that I will be revealing confidential secrets (spy). Although I wasn't in the real army (just conscription), they might think that because I guarded some of the information I might have other intentions for leaving the country. I might be put into prison, I don't know what they will do to me. Even if they (sic) the above punishment is not carried out, because I don't have a ppt to return, this may adversely effect my employment and educational opportunities."

* In a statutory declaration accompanying the appellant's application for a protection visa the appellant stated:

"If I return to Iran I will be executed. Whilst we may not have been of interest to Iranian authorities at the time we left Iran, we are certain that this is now the case (because of the news of Saeed). I will be accused of being a spy and interrogated. I have information about Iran's missiles and could well be linked to Dr Zad Mehr. ..." (Emphasis added.)

* In written submissions made to the Tribunal by the appellant's migration adviser it was contended that failed asylum seekers returned to Iran would face persecution. The appellant's migration agent wrote:

"To this we would add our concern at reports now emerging, but so far not confirmed that a number of failed asylum seekers sent back to Iran have indeed suffered at the hands of the Ettela'at and the revolutionary courts. The most serious of these reports asserted that one such deportee from Australia had indeed been arrested, interrogated harshly, taken before a revolutionary court and sentenced to a term of imprisonment, possibly a life term. However, we are not in a position to confirm this report before the beginning of February.

But we can supply evidence of a suspicious death in 1997 of a deported Iranian asylum seeker. This is attached."

* Attached to written submissions were further generic submissions about Iranian asylum seekers generally and the difficulties they faced if returned to Iran.

* In his oral submissions before the Tribunal, the appellant's migration adviser said:

"Of course the Iranian authorities will say they have no problem getting any Iranian back to Iran. They have no problem of issuing the passport by all means. I'm sure if the applicant went to the Embassy and lodged an application for a passport. They will give him the passport. But who will ensure his saftey in Iran once he is back? Of course members of the Australian Embassy can witness people arriving at the airport without encountering difficulties. This is very easy. But can they assure the applicant or the member that nothing would happen to them after 2 or 3 days, after 5, after 1 month?"

31 In relation to these claims the Tribunal made several findings which are set out above at para 13. The Tribunal did not accept the appellant's claim that he would be suspected of having divulged military information while abroad, the reason being that the appellant had left the country twice before (to travel to Syria and Turkey) and had returned on those occasions without incident. The Tribunal did not accept the appellant's claim that he would be subject to persecution on the basis of his failed application for asylum and/or his lack of travel documentation on the basis of country information which suggested that those factors would not give rise to persecution from Iranian authorities upon return. It appears, however, from the Tribunal's reasons for decision that it did not consider whether the combination of factors which included the appellant's sensitive posting in the military, his interview with ASIO, his failed application for asylum in Australia and his lack of travel documentation might together form the basis of a sur place claim for asylum, even if no factor was sufficient to support a claim on its own. Nor did it consider the possibility of whether the first two, in combination, might form the basis of a sur place claim.

32 A possible consequence of the Tribunal's failure to address what the combined effect of the appellant's circumstances might be, if the appellant was returned to Iran, can be illustrated by reference to the approach it adopted to the appellant's claim that he would be suspected of divulging military information. The Tribunal drew the inference that because the appellant had left Iran on two prior occasions and returned without arousing suspicion, his journey to Australia would also not arouse suspicion that he had shared sensitive military information with Australian or other foreign authorities. The appellant's earlier trips were markedly different from his journey to Australia. First, they were to neighbouring countries and were quite brief, one day in Turkey and one week in Syria. Second, on the earlier trips the appellant did not make a claim for political asylum, nor was there any suggestion that he was interviewed by the security agency of a foreign country. Thirdly, the relationships between Iran and Syria are plainly not the same as those between Iran and Australia, a country that, after all, has a longstanding military relationship with the United States of America which in turn does not have a friendly relationship with Iran. It would be illogical to draw inferences from what followed or did not follow from the appellant's return from his visits to Syria and Turkey about the response the appellant might receive if returned from Australia having made an unsuccessful asylum application and having been interviewed by a security agency of this country.

33 An apparent illogicality in the Tribunal's reasoning is not in itself a reviewable error. However to the extent that it demonstrates a failure by the Tribunal to ask itself the right question or a failure to consider a relevant consideration that it was bound to consider, illogicality may manifest reviewable error: see Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543 esp. at para 25. That is the case here. What is revealed by the Tribunal equating the appellant's earlier trip to Syria and Turkey with his journey to Australia and its failure to take its inquiry any further, is that the Tribunal asked itself a separate and distinct question, namely, would the fact that he had left the country arouse suspicion from the Iranian authorities and lead to persecution having regard to his earlier employment? The Tribunal failed to ask itself, as it was obliged to do in assessing the appellant's sur place claim, whether in all the circumstances the appellant had a well founded fear of persecution for a Convention reason arising from events occurring after the appellant's departure from Iran? If it had asked itself this question, it would have progressed from considering the appellant's claims individually to considering whether the interplay of circumstances, including the interview with ASIO to which no reference was made, placed the appellant in a position of risk. In failing to ask the right question, the Tribunal fell into error. This error may be characterised in a number of ways as is illustrated by the judgment of Wilcox and Madgwick JJ in Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 292 -293:

"... [B]ecause the RRT did not apply itself to all the substantial matters which might bear on whether the applicant met the Convention requirements of a refugee, the RRT did not consider the 'real question which it was its duty to consider' and this was a constructive failure by the Tribunal to exercise its jurisdiction: Minister for Immigration and Multicultural Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 577, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, implicitly endorsing the legal analysis (though not the factual conclusions) of Beaumont J at first instance [1997] HCA 22; (1996) 64 FCR 151 at 165. See also Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 at 480 and 483. A decision based on the RRT's constructive failure to exercise its jurisdiction is one `not authorised by the Act' within the meaning of s 476(1)(c). It also involves an 'error of law, being an error involving an incorrect interpretation of the applicable law' within s 476(1)(e). Further, it may involve an `error of law, being an error involving ... an incorrect application of the law to the facts as found' within s 476(1)(e) because, although the facts as found were that the appellant was not credible, the Act was incorrectly applied to that fact so as to result in the application being dismissed. The correct application of the law (in the circumstances of this case) required a determination, despite the appellant's lack of credit-worthiness, as to whether, on all of the relevant information obtained (including any which reasonably could and should have been obtained), he was a refugee, albeit an untruthful one."

(See also Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 particularly at paras 82 to 85.)

34 Counsel for the Minister submitted that the Tribunal's decision reflected the claims put to it by the appellant. In particular, counsel for the Minister submitted that no claims were made in respect of the ASIO interview.

35 We accept, as is evident from the material set out at para 30, that neither the appellant's claims nor submissions made on his behalf invited the Tribunal to draw links between, or look globally at, the facts set out above at para 29 in the context of advancing the appellant's sur place claim. We also accept that no apparent reliance was placed on the ASIO interview and how it might particularly place the appellant at risk of suspicion. Nonetheless the scope of Tribunal's review task is not limited by the case articulated by an applicant. The Tribunal should look at all the evidence and material that it has not rejected and give consideration to a case which it might reasonably raise, notwithstanding that such a case might not have been contended for by the applicant. This obligation on the Tribunal was explained by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 294- 295 where his Honour held that it is necessary to "consider all the relevant possibilities by looking back at the entirety of the material placed before [it]", and the decision-maker must "[stand] back from the particular grounds and consider ... the case in its entirety" (See also Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at para 13 and the authorities cited there).

36 The Tribunal did not make a specific finding as to whether the appellant was in fact interviewed by ASIO, though some of the Tribunal's observations are consistent with it accepting that he had been. The Tribunal certainly knew the appellant claimed to have been interviewed by ASIO (this is when he said he first mentioned the arrest of Saeed and Dr Zad Mehr) and the Tribunal nowhere rejected this claim. Nor was that claim challenged before us. The Tribunal should have considered the implications of the claim; in particular what would be the consequences of any interview in respect of a sur place claim for asylum. This is more particularly the case given that the Tribunal explicitly accepted that the appellant had worked at Iranian military missile sites.

37 It appears that this ground of review was not argued in precisely these terms before the primary judge. The combination of facts accepted, or at the very least not rejected, by the Tribunal, set out at para 29 above, were not brought into such stark relief as at the appeal. In particular, it appears that before the primary judge no emphasis was placed on the appellant's interview with ASIO and the significance it might have to his sur place claim. Nonetheless, the error of law now found on the part of the Tribunal, that is, failure to consider whether in all the circumstances the appellant had a well founded fear of persecution for a Convention reason arising from events occurring after the appellant's departure from Iran, does fall within the fifth ground of the application for judicial review which was before the primary judge notwithstanding that there was no mention of the ASIO interview. That ground of review was as follows:

"5. In finding that it was not satisfied that the applicant would face persecution for reason of his lack of passport, or other documentation, the Tribunal failed to take into consideration the real chance that return to Iran in such circumstances would alert security authorities to his previous history, including association with Saieed Rezaie, who has now been arrested, and his security sensitive employment in a missile site, and in the oil industry, leading to suspicion that he may have been involved in activities contrary to the interests of the State while in Australia, the Tribunal:

5.1. failed to identify a relevant issue,

whereby

5.2. the decision to affirm the refusal of a protection visa was made without jurisdiction: section 476(1)(b); and

5.3. the decision to affirm the refusal of a protection visa was not authorised by the Act : section 476(1)(c); and

5.4. it erred in law by an incorrect application of the law to the facts: section 476(1)(e)."

38 Although the ASIO interview is not mentioned, the thrust of the complaint was that the Tribunal failed properly to consider the sur place claim. In any event, this is not a case in which it would be right to require a strict reading of the grounds of review.

39 It is not for this Court to determine whether the ASIO interview or the asylum application has or might come to the attention of the Iranian authorities. Likewise it is not for this Court to decide whether if those matters do come to the attention of the Iranian authorities, there is a real chance they will lead to the persecution of the appellant, given his earlier employment, on the basis of a political opinion real or imputed. It is not for this Court to assess the risk to the appellant but rather to determine whether the Tribunal has done so. In our opinion, for the reasons given, it has not.

40 We order that the appeal be allowed with costs and that the matter be remitted to the Tribunal, differently constituted, for reconsideration.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and Justices Wilcox and Moore.

Associate:

Dated: 17 April 2002

Counsel for the appellant	The appellant appeared in person
Counsel for the Respondent:	Mr A.A. Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 March 2002
Date of Judgment:	19 April 2002