W389/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 432 (20 December 2002)

Last Updated: 14 February 2003

FEDERAL COURT OF AUSTRALIA

W389/01A v Minister for Immigration & Multicultural Affairs [2002] FCFCA 432

MIGRATION - refugee - refusal of a protection visa - whether Tribunal misunderstood the material before it - whether Tribunal acted without authority - whether Tribunal failed to perform its function under the Migration Act 1958 (Cth) - whether Tribunal's conclusions supported by probative material or logical grounds - whether trial Judge erred by finding that the failure of the Tribunal to exercise its power of inquiry under s 427(1)(d) of the Migration Act 1958 (Cth) did not disclose ground for review

Migration Act 1958 (Cth) ss 427(1)(d), 430, 476(1)(b), 476(1)(c), 476(1)(e)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Gao v Attorney General of the United States (2002) 299 F.3d 266 referred to

W68/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 148 referred to

Bastanipour v Immigration and Naturalization Service 980 F.2d 1129 (7^th Cir. 1992) referred to

Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 referred to

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR referred to

R v Higher Education Funding Council, Ex parte Institute of Dental Surgery [1994] 1 All ER 651 referred to

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 referred to

Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 referred to

Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 referred to

Baker v Canada (Minister of Citizenship and Immigration) (1999) 174 DLR (4^th) 193 referred to

Minister for Immigration & Multicultural Affairs v Perera (2001) FCA 1212 referred to

W396/01 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 103 referred to

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 referred to

Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 referred to

Re Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 referred to

X v Commonwealth [1999] HCA 63; (1999) 167 ALR 529 referred to

Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161 referred to

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 referred to

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 referred to

Minister of State for Immigration, Local Government & Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77 referred to

Azzi v Minister for Immigration & Multicultural Affairs [2002] FCA 24 referred to

Luu v Renevier (1989) 91 ALR 39 referred to

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

Re: Minister for Immigration & Multicultural Affairs; Ex parte Cassim [2000] HCA 50; (2000) 175 ALR 209 referred to

SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1377 referred to

Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 followed

Majeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470 referred to

Gomez v Minister for Immigration & Multicultural Affairs [2001] FCA 935 referred to

Awan v Minister for Immigration & Multicultural Affairs [2001] FCA 1036 referred to

[WAEH] v Minister for Immigration & Multicultural Affairs [2002] FCA 6 referred to

Kulwant Singh v Minister for Immigration & Ethic Affairs (North J, 21 November 1995, unreported) referred to

Airo-Farulla "Rationality and Judicial Review of Administrative Action" (2000) 24 MULR 543

W389/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W389 OF 2001

LEE, RD NICHOLSON, FINKELSTEIN JJ

20 DECEMBER 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 389 OF 2001

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:	W389/01A Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGES:	LEE, RD NICHOLSON & FINKELSTEIN JJ
DATE OF ORDER:	20 DECEMBER 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

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	W 389 OF 2001

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:	W389/01A Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	LEE, RD NICHOLSON, FINKELSTEIN JJ
DATE:	20 DECEMBER 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

LEE J:

1 This is an appeal from an order by a Judge of this Court (Wilcox J) that an application by the appellant under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision made by the Refugee Review Tribunal ("the Tribunal") be dismissed. (See: P v Minister for Immigration & Multicultural Affairs [2001] FCA 989.) The Tribunal affirmed a decision of the delegate of the respondent ("the Minister") that the appellant not be granted a "protection visa" under the Act.

2 The appellant, a citizen of Iran, left that country on 13 May 2000 and entered Australia's "migration zone" on 29 June. He was then aged 37, and an accountant by profession. At the time of entry the appellant did not hold a visa issued under the Act and pursuant to ss 13 and 14 of the Act became an "unlawful non-citizen". Pursuant to ss 189 and 196 of the Act, the appellant was placed in "immigration detention" where he has been held ever since. The appellant does not read or speak English.

3 On 16 October 2000 the appellant lodged an application for a "protection visa" under the Act, claiming fear of persecution if he were returned to Iran. On 7 November 2000 a delegate of the Minister determined that the grant of a visa would be refused. The decision of the Tribunal was made on 31 January 2001.

4 On the hearing of the application for review, and on the appeal, the appellant was represented by counsel appointed pro bono publico pursuant to O 80 of the Federal Court Rules.

5 Under s 65 of the Act, if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused. The only prescribed criterion relevant to this proceeding is that set out in s 36(2) of the Act which, at material times, provided as follows:

"A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

6 In s 5 of the Act the terms "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967". The phrase "protection obligations under the [Convention]" is not defined in the Act and is not a term used in the Convention.

7 The Convention is a treaty pursuant to which the "Contracting States" agree to apply the provisions of the Convention to "refugees". Sub-Article 1(A) of the Convention provides the following definition of "refugee":

"For the purposes of the present Convention, the term `refugee' shall apply to any person who:...(2)...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;..."

Limitations upon the operation of the Convention definition of refugee are set out in, inter alia, sub-Articles 1(C), (D), (E) and (F). It was not contended that any of the foregoing sub-Articles applied to the appellant.

8 As a Contracting State, Australia has accepted the obligations imposed upon it by international law by reason of accession to the treaty. Numerous obligations in respect of refugees are set out in the Convention, including an undertaking by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. All of those obligations could be said to come within a broad meaning of "protection obligations under the [Convention]" but, having regard to the purpose of s 36(2), the phrase as used in that subsection may be taken to refer instead to obligations imposed by the Convention that are direct, rather than indirect, obligations to protect a refugee.

9 When the appellant was first interviewed at the Curtin detention centre near Derby in north-western Australia two days after arrival, the interviewing officer recorded the answers the appellant had provided through an interpreter. According to that record, the appellant stated that he began planning to leave Iran two months before he left and that his reason for leaving was that he could not tolerate the absence of human rights in Iran and the restriction of freedom. The appellant appeared to rely upon the same reasons when responding to the question whether he had any reason "for not wishing to return to [Iran]".

10 When the appellant applied for a protection visa three months later, the appellant provided the following statements (as translated) in support of his application:

"3. In my first interview I only explained the general situation in the country, because I did not feel safe. I thought that otherwise some things may hurt my family.

4. My problem started when I was working in a government controlled fishing company called [...] in the finance section of the caviar Department in the town of [...]. This company is a major earner of foreign exchange for Iran. The company has a security division controlled by the Information Ministry. They normally control the caviar exports and personnel and can arrest employees, for example, for wearing short-sleeved shirts or complaining about government policy.

5. In March 2000 after 13 years employment I was promoted to the position of controller of caviar exports. I found discrepancies between the production and exports of caviar. This was by changing the production figures by hand. The person doing this was head of company security named [...]. I then investigated further back and checked previous manifests. In most instances this was also the case. For each shipment there was about 100 kilos missing. I sent a report to the company manager stating that I could provide manifests. I mentioned no names in the report although I was sure the head of security was responsible. The following day the head of security started to abuse and harass me. He asked why I did not attend noon prayers and why I shaved my beard. Because of my previous complaints about government policy and misuse of power by President Rafsanjani, he accused me of insulting the Islamic Supreme Leader and promoting anti-government ideas. I denied the allegations. He warned me to be more careful and I knew it was because I had sent that report to the Manager. A few days later security headquarters called me and I was questioned about my activities and how I spent my leisure time, attendance at Friday prayers and about my friends. The next day after I left work I was stopped by a car with 4 passengers asking for my ID. I asked who they were and for them to show their ID. They asked me to get into the car. I refused. Three of them forced me into the car and bashed me. My right leg was caught in the door and started to bleed. They blindfolded me and took me to a building which I found out later was a secret Ministry of Information prison. They gave me a cloth for my wound and put me in a single cell. Two days later I was caned with an electric cable on the soles of my feet. After, they made me run in bare feet.

6. Previously at work I was sometimes sent to other towns on business. Therefore regarding my time in prison, only after three days did my family go to my workplace to enquire my whereabouts. [The head of security] told my brother that I was accused of anti-government activities, had been arrested and put in an Information Ministry prison. He told my brother that he was trying to get me out of prison. He accompanied my brother to the prison. Although I was unable to have visitors they visited me. First my brother started to blame me. I told him that I could not talk about it. [The head of security] showed me a written petition from company workers that I had criticised government policies and the brother of the Head of the Foundation for the poor and the needy, and that that brother had stolen 130 billion tumans from the Foundation; and that the authorities knew about it and had done nothing. It was true but I denied that I had criticised anyone. He then asked my brother to step outside and [the head of security] told me that if he handed this petition to the Information Ministry my life would be over. But if I would deny my letter to the manager about the caviar discrepancies and gave him copies of the manifests, he would not hand in the petition to the authorities. Naturally I had to accept his demand, but I told him that the manifests were with friend of mine in Tehran. The deal was that my brother had to produce a car ownership title in exchange for giving me 48 hours freedom to produce the manifests. My friend in Tehran told me to come to Tehran and to leave the country otherwise they would never let me go free. I travelled to Tehran taking my passport. My friend arranged with a smuggler for me to come to Australia although I had decided to go to the UK at Christmas (because I knew some fellow townsmen there), through Bosnia and Austria, but because it was winter it was deemed impossible. So I decided to come to Australia.

7. ...

8. I fear returning to Iran because my life is in danger because of this incident at work. I do not feel safe in Iran anymore. The Iranian authorities cannot protect me because even I do not know who else was involved, the extent of the theft, and because I never received a response from the manager to my report. It is not normal procedure to ask for a response to my report except through my supervisor, [...]. As for my brother, he might lose his car but I don't think anything else will happen to him."

11 The following "Supplementary Statement", dated 7 December 2000 and prepared for the appellant by a migration agent, was also provided to the Tribunal:

"1. At the Seafood company, when I discovered what was going on with the caviar I was sure the embezzlement was organised by the internal security officer who I knew was also an Ittila'at [sic] officer. That was why I wrote the letter in my own handwriting and it [sic] with a copy of the manifests to the Director to inform him of what I had found.

2. I knew that the internal security officer, [...] would never do such a thing by himself. Therefore there had to be some other people involved and they would have had to been in high positions in government working in cooperation with the Ittila'at [sic] for some reasons.

3. I came to this conclusion because:

[diamond] The Director did not acknowledge my report

[diamond] The internal security officer knew about my letter

[diamond] He put me under so much psychological pressure in the company and made accusations about me and my views about the Supreme leader and my criticisms of government policies - about which I often spoke to colleagues, corruption and the serial killings.

[diamond] He also took me to his office next day. There I was arrested by men in plain clothes and taken to the isolated Ittila'at [sic] prison in town and interrogated and beaten. I was also tortured with a steel cable.

4. What they did to me for reporting corruption shows, I feel, that there were people in high places whose objective was to recover my handwritten report and then get rid of me - as happens so often in Iran.

5. Caviar embezzlement is most unusual because caviar is Iran's second biggest export earner after oil. A few years ago when Nateq Nouri, the head of the Majlis went to France he found large scale evidence of stolen caviar smuggling, with the funds going to the Mojahedin opposition. On his return it was announced that long prison terms or execution would await anyone arrested for smuggling caviar. That is still in force.

6. I was able to escape because for my safety I had sent all the manifests as evidence to Tehran and so I was able to gain 48 hours reprieve. I used that time to escape.

7. Please note that I deliberately did not tell about this at my first interview after arrival because I was so fearful and suspicious and scared to say too much. I did not know then if I would be protected and whether my words would be reported to the Iranian authorities because if it got back to the Ministry of Security and Intelligence and I fell into their hands - well I would have to face severe consequences.

I did not become aware about the assurances of privacy until my adviser told me just before my second interview and that is why I disclosed all the details then.

8. I knew I was held in the Ittila'at [sic] detention prison because I have lived all my life in that town and everyone knows where it is. When I arranged my release it was at 5.30pm on 10 May 2000 and I was allowed to go off into the street and to my place so I could arrange to go to Tehran.

9. Though I had my old passport, I left it to a smuggler to get it stamped with an exit permit. Getting one now is easy, I'm told. It is more like a departure tax than a special permit and I am told you can even get them at the banks when you go to pay for them.

10. Getting through the airport is simple after the initial check-in. I only recall having to go to an area where there was a woman officer in hejab. She checked my passport and my exit stamp. I recall that she also checked on her computer. Then she waved me on. Because I had been so quick, I don't think they would have had time to put my name on any blacklist.

Finally, I would ask the respected Tribunal to gain a full understanding of the dangers I faced by discovering this serious embezzlement and uncovering what is clearly high-level corruption with some sort of Ittila'at [sic] involvement. The company security officer tried to make it political against me and has laid complaints in the local court against me. My brother has sent me copies of the warrants they have issued. These are attached. He also sent me a letter described how they have been interrogating him and beating him to reveal my whereabouts. They have seized his minibus and he has a family to support. The letter is attached. It made me very sad for him and his family. But had I not escaped I would now be a dead man."

12 Section 430 of the Act required the Tribunal to explain its decision by providing a written statement that set out the findings made by the Tribunal on material questions of fact, the evidence or material relied upon for the findings, and the reasons of the Tribunal. In that written statement the Tribunal stated that the appellant gave "oral evidence" to the Tribunal on 12 December 2000, apparently by video-transmission from the "Derby Telecentre". The Tribunal, and the appellant's adviser, were at a Tribunal hearing room in Sydney. A witness, whose account the appellant asked the Tribunal to hear, appeared before the Tribunal in Sydney. It is not clear whether the interpreter was present with the Tribunal in Sydney or only participated in the proceeding by a telephone connection, but it is apparent that the interpreter was not present with the appellant at Derby.

13 In the written statement the Tribunal said that the appellant told it that he had presented his hand-written report and supporting documents to his supervisors on 1 May 2000 and "immediately started having problems". The Tribunal set out the following summary of that part of the appellant's account to the Tribunal:

"He told the Tribunal that he sent a copy of his report to his boss, one to the director general of the organisation, that he kept a copy which he posted to the Justice Tribunal [sic] before leaving Iran. He told the Tribunal that he had initially kept his copy with him in Anzali but had spoken to a friend from Anzali who was living in Tehran and had told him that he may need to send the report to him. The Tribunal pointed out to the [appellant] that this differed from his previous statements. He said that he had not been asked about it previously and hence he had not mentioned posting his report to the Justice Tribunal [sic]."

14 The Tribunal recorded later in the written statement that the appellant had stated that, after he travelled from Anzali to his friend's place in Tehran and was advised by his friend to flee Iran, he then posted the report and copy documents to the "Justice Tribunal".

15 Under the heading "FINDINGS AND REASONS" the Tribunal's written statement read as follows:

"The [appellant] initially claimed to have left Iran legally purely for social reasons. He claimed that he could not tolerate and could not adapt to Iran's environment which lacked human rights and placed limits on personal and social freedoms. The only fear he expressed at that point was that he could be ostracised if he were to be imprisoned if sent back to Iran. Subsequently, the [appellant] changed the account of his reasons for leaving Iran. He claimed that he had left after discovering and reporting on a caviar export scam at his place of employment. The [appellant] claimed that following his report he was harassed by the head of security within his workplace, had to submit himself to questioning by the security authorities and was subsequently detained. The [appellant] claimed that the head of security accused him of anti-government activities and produced a statement from his colleagues at work which supported this. He claimed that this man threatened to pass the information about him to the information ministry unless he returned his report and supporting documents and on condition that he retracted his findings. The [appellant] claimed that he was released from detention for the purpose of retrieving his report and attached documentation which he had claimed was in Tehran. The [appellant] claimed that on reaching Tehran he obtained an illegally obtained exit permit and fled the country. He now also fears persecution for having applied for asylum.

It is self evident that the [appellant's] initial claims would not put him within the ambit of the Refugees Convention as he has not claimed to fear persecution for something real or perceived about himself.

The Tribunal is not satisfied that the [appellant's] second account is true. The account seemed to have evolved to fit the Convention in quite a contrived and, at times vague, manner. The [appellant] could not articulate who it was that he feared and the reasons for his fears varied from across his submissions. He said that he had been threatened that his life would be over if the information ministry were given the statement of his colleagues; he claimed that he had been warned about the seriousness of caviar crimes; that he was in fear for having "blown the whistle" on his office's internal security unit and probably a group of highly placed officials; because he was being blackmailed into handing back the evidence of the scam; because he has vital information that some people do not wish it is released; because his problem has been made to look political.

The [appellant's] accounts of what he alleged took place contained discrepancies. Two of these are in respect of what he did with the report and with respect to his arrest. In one submission the [appellant] claimed that he had sent evidence of the scam to a friend in Tehran for safekeeping yet he said at the hearing that he had kept the evidence and had sent it to the Justice Ministry before leaving Iran. According to some accounts the [appellant] was arrested in the street when some men forced him into a car. One submission claims that he was arrested in the office of the head of security within his workplace.

The [appellant's] claims were unsupported. The Tribunal does not accept that the warrant he submitted is legitimate. Country information indicates that warrants are not given out (p21). The [appellant] agreed with this but explained that this was a warrant from the head of internal security at his workplace. The explanation makes no sense. The letter from his brother seems self serving in the circumstances. It is understandable that a family member would write such a letter to help one of their own. It is also notable that the letter from the brother does not seem to reflect the [appellant's] version of what took place. The brother's letter implies that he was unaware of the [appellant's] problems whereas, according to the [appellant], the head of security made the accusations against him known to his brother and the brother put the deed of his car as security to have him released. The [appellant's] witness was only able to relate what the [appellant] himself had said to him and hence added nothing further by way of evidence. In contrast to the [appellant's] claims, the letter from his employers suggests that he had no problems at work as his employers were satisfied with him.

Besides all of this, it seems that if the Iranian authorities treat crimes involving caviar very seriously, as the [appellant] claimed, he would have nothing to fear having reported the matter and supplied evidence to the Justice Ministry as they would have brought those responsible to account. The [appellant's] explanation that this would not be the case as the matter would be trivialised or overlooked stands in contrast to his previous claim.

For all the above reasons, the Tribunal does not accept that the [appellant] is telling the truth and is inclined to believe that the [appellant's] first account of his reasons to come to Australia are more likely to be correct. The Tribunal does not accept the [appellant's] reasons for not advancing the second account when first interviewed if this had been the truth. He had after all come to seek protection and it would be reasonable therefore that he would have expressed his true fears when asked what brought him here. That is not to say that some people may not at times be reluctant to voice their fears but, in these circumstances, the Tribunal is not prepared to accept that this was the [appellant's] case. The Tribunal notes that the [appellant] left Iran legally and, coincidentally, after being divorced. All of these would seem to suggest that the [appellant] left Iran for personal reasons as he first claimed. Hence, the Tribunal is not satisfied, on the evidence before it, that the [appellant] had a well founded fear of persecution at the time he left Iran or indeed a subjective fear of persecution."

16 The conclusion of the Tribunal that the appellant does not have a well-founded fear of persecution turns on the finding that it was not satisfied that the appellant's account was true. The reasons provided by the Tribunal for that finding were alleged "discrepancies" in the appellant's account and, further, that his claims were "unsupported".

17 Dealing first with the alleged "discrepancies", the following comments may be made. First, the Tribunal appears to have stated the appellant's evidence inaccurately by implying that at the Tribunal hearing the appellant provided an inconsistent account of how he had dealt with the report on corrupt activities he claimed he had prepared. The Tribunal's summary of what the appellant said to the Tribunal did not reveal such an inconsistency. The thrust of the appellant's evidence appeared to be as follows: after he prepared the report he kept a copy for himself but arranged later for that copy to be sent to a friend in Tehran for safekeeping; when the appellant went to his friend's place in Tehran, after being released from detention by Ettela'at, the appellant recovered the copy report and posted it to the Justice Ministry. The statement that he sent the material to the Justice Ministry was an addition to the appellant's account but was not inconsistent with previous statements.

18 The second of the alleged "discrepancies" in the appellant's statements is an alleged difference in account as to the place and manner of the arrest of the appellant by Ettela'at personnel on 7 May 2000. In the statement provided to support the application for a visa on 15 October 2000 the appellant stated that when he left work [on 7 May 2000] he had been stopped in the street by four men in a car and taken to an Ettela'at "prison". He reiterated that claim in a "departmental interview" conducted on 20 October 2000. His advisor repeated the account in a letter to the Tribunal dated 8 December 2000. At the Tribunal hearing the appellant provided evidence in the same terms. The material which the Tribunal said contained a different account was the "Supplementary Statement" dated 7 December 2000. The statement was referred to in the letter of the advisor dated 8 December 2000, which, as noted above, repeated the appellant's previous account. A notation on the "Supplementary Statement" declared that the translator of the statement had prepared it from written material provided by the appellant and from telephone interviews conducted with the appellant. The statement appeared to have been constructed by the translator from composite material. The "Supplementary Statement" recorded the following in respect of the appellant's encounter with the head of security at his workplace:

"[diamond] He also took me to his office next day. There I was arrested by men in plain clothes and taken to the isolated Ittila'at [sic] prison in town and interrogated and beaten. I was also tortured with a steel cable."

19 The description of men in plain clothes, place of detention and treatment in detention was consistent with previous accounts. Although the Tribunal was entitled to have regard to a possible divergence in the appellant's story in respect of the actual place of arrest, the otherwise consistent account provided by the appellant prior to and after the "Supplementary Statement" suggested that it was as likely as not that the purported difference arose from a misunderstanding of the appellant's account by the translator who prepared the "Supplementary Statement", or from a corruption of the appellant's account by that translator upon constructing the statement. It does not appear that the issue was put to the appellant for comment or explanation. Although the Tribunal could consider that difference in determining whether it was satisfied that the appellant had a well-founded fear of persecution, proper exercise of the Tribunal's function would have required that item of detail to be given little weight if other material before the Tribunal supported the appellant's account. Furthermore, minor inconsistencies or admissions that reveal nothing about the substance of an asylum applicant's fear for his safety are not an adequate basis for an adverse credibility finding. (See: Gao v Attorney General of the United States (2002) 299 F.3d 266 (U.S. Court of Appeals for the Third Circuit).)

20 If the foregoing constituted the totality of the appellant's case, perhaps it could be said that it fell short of establishing ground for judicial review under s 476 of the Act but, as discussed below, the appellant's case was not so limited and it is unnecessary to decide that question.

21 On 10 December 2000 the appellant's advisor or migration agent had forwarded to the Tribunal the advisor's letter dated 8 December 2000, the "Supplementary Statement" and three photocopies of documents received by the appellant by facsimile transmission from Iran. Translations of the copy documents were also supplied. Save for one document, the Tribunal did not take the content of those documents into consideration and, as noted above, asserted that the appellant's claims were "unsupported".

22 The first of those documents was a "certificate" from the appellant's employer which confirmed that the appellant had been appointed to the position of supervising financial officer on 24 March 2000. The certificate may be taken to have been issued before the appellant ceased that employment given that it was expressed in the present tense and referred to the continuing employment of the appellant. The Tribunal accepted that the certificate supported the appellant's account as to the nature of his employment in Iran.

23 The second document purported to have been issued under the authority of the Justice Department of Iran. In an "Unofficial translation" the title of the document was recorded as "Warrant", however, the terms of the document as translated stated that the appellant was required to attend the Bandar Anzali court on 11 July 2000. It stated that the "Security unit" of the appellant's employer had lodged a complaint against him and for that reason the "Warrant" had been issued. The appellant received this document by facsimile from Iran on 3 December 2000.

24 The written statement provided by the Tribunal stated that, at the hearing, the Tribunal had "pointed out to the [appellant] that it had concerns about the credibility of his claims" and told the appellant that "country information indicated that warrants are not made available". The Tribunal stated that the appellant had responded "that the documents he had submitted were not a `warrant' but a notification to issue a warrant as warrants are not given out".

25 To that point, the appellant's description of the document and his reliance on it appeared to be well-grounded. After the hearing the Tribunal, by letter dated 3 January 2001, invited the appellant to comment on "information before the Tribunal in respect to warrants". As recited in the Tribunal's written statement, that information had been prepared in July 1997 by the Department of Foreign Affairs and Trade ("DFAT") for use in another matter. The information read as follows:

"In relation to the procedure for issuing arrest warrants in Iran, warrants are issued by the judicial authorities directly to the police for the arrest of the defendant. The defendant is never provided with a copy of the warrant. Iranian law requires that defendants be informed of charges against them within 24 hours although this requirement is not always adhered to.

In the case of lesser charges, including misdemeanours such as breach of trust or failure to pay alimony, the defendant receives a summons to appear in court. The summons is issued by the judicial authorities and sent to the address of the defendant, by the bailiff of the Ministry of Justice. Unlike arrest warrants, a summons can be served regardless of whether or not the defendant is present and can be kept by the individual concerned. In contrast, an individual charged with serious offences such as manslaughter or major drug offences would not be summonsed to appear in court. Rather, a person charged with an offence of this severity, would simply be arrested by police who would possess an arrest warrant.

After its issue by the judicial authorities to the police, the arrest warrant is retained by the police who place it on the defendant's file. It is not returned to the judicial authorities. Under no circumstances would a copy of an arrest warrant be given to the person charged or to a member of his family. The defendant never has the right to see it. As previously mentioned, the defendant's only right is to be told within 24 hours the reason for his detention.

The Embassy's legal firm has seen many forged Iranian official documents including arrest warrants. Forgeries often consist of whiting out some descriptions on the summons (not on an arrest warrant because the defendant would never have this in the first place) and then making a photocopy of the document, or simply printing fake judicial documents and then filling them in.

Our legal firm has advised that it would be willing to examine any documentation or make limited enquiries with the courts. It is in a position to establish if particular cases genuinely exist in the courts."

26 The appellant provided the following comments in reply to the Tribunal's request:

"2. In Iran [they] usually do not give an arrest warrant to a person, but they arrest them immediately. I was sent to prison by force. I would not be sent an arrest warrant, but I could be arrested immediately. I was released on a bail for only 48 hours, no matter which part of Iran I go I would be arrested.

There is four ways of arrest in Iran:

* Immediately without any order (Like myself)

* Warrant paper which has been given to the police for arrest

* A summon given to the accused person and attendance within 24 hours

* A warrant with a specified date to attend (like my warrant)

3. My warrant was not issued from [Ettela'at] itself, but from a security unit of our company (security person named [...] who was the representative of the company, he made a complain[t] (after my escape) saying that I took out some important documents from company and they issued a warrant for me.

First, I was accused of embezzlement, secondly I was accused of insulting the government and they had a letter signed by some of the workers to confirm that accusation and signed.

The authorities in the company wanted me to write a letter and admit that I have made a mistake, therefore they can get rid [of] me. This is a normal procedure in Iran. They will give you a political label (I am sure that you remember the story of Mr Hooter, from Germany in Iran and all he did was talking to a girl).

4. I mention again that the warrant was not issued by [Ettela'at] itself, but it was a warrant from the fishery company. At the end of the warrant it says that according to the complain[t] against me after my escape that I had some of the company's documents without permission. My accusation was bigger than this as I was considered as an anti-regime."

27 It is to be noted that the appellant referred to details of the allegation against him that appeared "at the end of the warrant" but the translated document does not set out those details.

28 The appellant's comments and the information provided by DFAT appeared to be consistent. A summons or direction to the appellant to appear in court had been issued under judicial authority and delivered to the appellant's address.

29 The Tribunal dealt with the document by stating that it "[did] not accept that the warrant [the appellant] submitted is legitimate". The reason for that conclusion was said to be that the information provided by DFAT was that warrants were not "given out" and that the explanation provided by the appellant in response to that information "[made] no sense". The Tribunal's written statement indicated that it understood that "explanation" to be that the warrant was "from the head of internal security at his workplace". No other reason was provided. The Tribunal did not identify any ground on which it had concluded that the document was not "legitimate" by reason of forgery. Perhaps for that reason the Tribunal did not consider it necessary to ascertain whether an earlier offer by DFAT, to have the authenticity of such documents tested, should be acted upon.

30 The appellant had presented a document purporting to be issued under the authority of the Department of Justice in Iran summoning him to appear in court. It did not purport to be an arrest warrant. The appellant pointed out to the Tribunal that the summons had been issued on the complaint of his employer. It was clear that the appellant apprehended that the actions of his employer were being directed by its head of security (a member of Ettela'at). In other words, the appellant feared that the judicial processes of the State were being used by "powerful forces" in the security service as a means of inflicting harm upon him as a person who threatened members of such a force empowered by the State to maintain the security of the State and to protect the "revolution". The appellant contended that he would be a person to whom political opinion would be imputed as the reason for his allegations of corruption against security force personnel. (See: W68/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 148 at [46]- [54].)

31 The third document relied upon by the appellant was a letter from his brother in Iran. The appellant received the letter on 3 December 2000. As translated the letter read as follows:

"My dear brother Hossein.

I hope you are OK and having a good life. When you left on [13.5.2000] I had many problems. We did not know where you had gone to after you told us you wanted to travel to do some business. Our mother did not tell us where you really went. But after all the things which happened to us, we found out and we felt we would have been better off not knowing.

Let me tell you about some of the things which happened to me. I was carried off several times by security people and investigated. They wanted me to tell them where you were. But I could not tell them much because I did not know. That did not stop them beating me as they asked me again. I did'nt [sic] know what to do. They confiscated my minibus from which I was earning a living and they warned me that [if] I did not tell them where my brother was, though [sic] would not return the minibus. I was really confused. I asked myself, what's going on? I asked them and they told me it wasn't any of my business. Obviously it was something very important. Because after each session they were always following me and they never left me.

When I got your address, I thought I'd better let you know because now the problem is too big. They take me to unknown places by covering my eyes and interrogate me again. I think they belong to `Amniat' [security and intelligence]. I entreated them by swearing I did not know where you were. But they told me I was lying. Now I don't know how I can continue to earn a living for my wife and our child.

Last time they gave me one month to tell them where you are. Now my dear brother, I don't know exactly where you are and I have spent all my savings and rent and the prices are very expensive here. I have nothing to spend any more. Please do something...(illegible)...and please contact me and tell me what to do, because I think they won't give me any more time and I am frightened.

Your mother is very worried about you and crying and cursing them day and night. Please send us a letter and let us know about your situation. I want you to save me from this horrible situation."

32 The Tribunal made the following comments on this letter:

"The letter from his brother seems self serving in the circumstances. It is understandable that a family member would write such a letter to help one of their own. It is also notable that the letter from the brother does not seem to reflect the [appellant's] version of what took place. The brother's letter implies that he was unaware of the [appellant's] problems whereas, according to the [appellant], the head of security made the accusations against him known to his brother and the brother put the deed of his car as security to have him released."

33 The material before the Tribunal in respect of the involvement of the appellant's brother was as set out in the appellant's statement in support of his application for a protection visa, (repeated by the appellant in his evidence to the Tribunal):

"...after three days...my family [went] to my workplace to enquire my whereabouts. [The head of security] told my brother that I was accused of anti-government activities, had been arrested and put in an Information Ministry prison. He told my brother that he was trying to get me out of prison. He accompanied my brother to the prison. Although I was unable to have visitors they visited me. First my brother started to blame me. I told him that I could not talk about it. [The head of security] showed me a written petition from company workers that I had criticised government policies and the brother of the Head of the Foundation for the poor and the needy, and that that brother had stolen 130 billion tumans from the Foundation; and that the authorities knew about it and had done nothing. It was true but I denied that I had criticised anyone. He then asked my brother to step outside and [...] told me that if he handed this petition to the Information Ministry my life would be over. But if I would deny my letter to the manager about the caviar discrepancies and gave him copies of the manifests, he would not hand in the petition to the authorities. Naturally I had to accept his demand, but I told him that the manifests were with [a] friend of mine in Tehran. The deal was that my brother had to produce a car ownership title in exchange for giving me 48 hours freedom to produce the manifests." (Emphasis added.)

34 In the foregoing account, neither the appellant nor the head of security told the appellant's brother that the appellant had alleged, by implication, that the head of security was engaged in corrupt activities at the appellant's place of employment. The appellant stated that the head of security took steps to ensure that the appellant's brother was not informed that the appellant had made allegations of corruption involving that officer, and was concerned to recover, and limit disclosure of, the incriminating material held by the appellant. In the presence of the appellant alone, the head of security agreed that the appellant would be released for 48 hours to obtain and deliver up that material, the security for that release to be the production of documents of title to the brother's minibus.

35 It can be seen there is no inconsistency between the content of the brother's letter and the appellant's account of his brother's involvement. The brother's description of the loss of his vehicle is consistent with the prior claim of the appellant that the vehicle had been provided as security for his release from detention. It was also consistent with the appellant's apprehension, expressed in the statement he made several months before the brother's letter, that his brother might lose his car.

36 In its written statement, the Tribunal said that, in the course of the hearing, it dealt with this aspect of the appellant's case as follows:

"The Tribunal pointed out to the [appellant] that it had concerns about the credibility of his claims. The Tribunal explained to him that his claims appeared to have been designed to fit the Convention in a very contrived manner. It pointed out to him that his claims were unsupported, that he could have asked his brother to write the letter..."

37 The Tribunal's approach to the letter was to assert that it was self-serving and to speculate that the appellant had "asked his brother to write [it]". If the Tribunal thought the letter to be an elaborate fraud, planned some months in advance, it did not say so and made no finding of fact to support that conclusion. A bare statement that the letter was self-serving did not permit the Tribunal to ignore the document. (See: Bastanipour v Immigration and Naturalization Service 980 F.2d 1129 (7^th Cir. 1992)). The letter supported the appellant's case by confirming that security service personnel were attempting to find the appellant and take him into custody.

38 The Tribunal had no material on which it could conclude that the letter and its contents were fabricated, and the statement that the letter was self-serving appeared to mask a view as to fabrication upon which the Tribunal was prepared to act but was unable to support by reasoned explanation. The reasons of the learned primary Judge do not refer to the Tribunal's treatment of this letter and it may be assumed that no submissions were made to his Honour upon it.

39 With regard to the manner in which the Tribunal dealt with the document described as a "Warrant", his Honour said that despite the unsatisfactory way in which the Tribunal handled that issue, there was no ground for review available to the appellant in respect of that default. With respect to his Honour, I am unable to agree.

40 If the document were genuine, then as a summons to appear in court it supported the appellant's case in a significant respect. In conjunction with the remainder of the appellant's account it was capable of providing grounds for concluding that the appellant had a well-founded fear of persecution. The Tribunal's misunderstanding of the material before it had consequences for the process of review it purported to conduct. If, by reason of that misunderstanding, the Tribunal failed to have regard to the document by misstating the terms thereof, and also misstated the appellant's explanation of the operation of the document, and thereby purported to conclude, by relying on that misunderstanding, that his explanation "[made] no sense" and impacted adversely on his credibility, then it may be said that the Tribunal acted without authority and failed to carry out at all the function it was instructed to perform by the Act. (See: Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 per Gibbs J at 118-119; Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 275-276.)

41 The Act requires an adjudication to be made in respect of the grant or refusal of a visa based on a decision as to satisfaction regarding the status of the applicant for a visa as a refugee. (See: Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at 277). The nature and importance of the decision to be made requires the determination to be made "judicially", although, of course, not in the exercise of judicial power. As Sedley J stated in R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 All ER 651 at 667):

"In the modern state the decision of administrative bodies can have a more immediate and profound impact on people's lives than the decisions of courts, and public law has since Ridge v Baldwin [1963] UKHL 2; [1963] 2 All ER 66, [1964] AC 40 been alive to that fact. While the judicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example by requiring contentious evidence to be given and tested orally, what makes it `judicial' in this sense is principally the nature of the issue it has to determine, not the formal status of the deciding body."

42 A decision-maker required to act "judicially" must act rationally and reasonably. (See:  Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Deane J at 366-367.) The statutory power to grant or refuse a visa, or the "jurisdictional" base for exercise of the power, depends upon compliance by the decision-maker, in this case the Tribunal, with the requirements of the Act. As Gummow J stated in Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [145]:

"Where the issue whether a statutory power was enlivened turns upon the further question of whether the requisite satisfaction of the decision-maker was arrived at reasonably, I would not adopt the criterion advanced by Lord Wilberforce [Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014 at 1047]. I would prefer the scrutiny of the written statement provided under s 430 by a criterion of `reasonableness review' (see: Schwartz, Administrative Law, 3^rd ed (1991), § 10.32). This would reflect the significance attached earlier in these reasons to the passage extracted from the judgment of Gibbs J in Buck v Bavone ( [1976] HCA 24; (1976) 135 CLR 110 at 118-119). It would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds (cf Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 366; Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at 776-777)."

43 A similar approach has been taken by the Supreme Court of Canada. In Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at [56], approved in Baker v Canada (Minister of Citizenship and Immigration) (1999) 174 DLR (4^th) 193 (at [63]), Iacobucci J, delivering the judgment of the court, said as follows:

"An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it."

44 In the absence of probative material or logical grounds capable of supporting a conclusion that a claim by an applicant as to the existence of a fact is fraudulent, a Tribunal could not be shown to have made the determination as to satisfaction required by the Act if it purported to base that determination upon the conclusion that such a claim was fraudulent.

45 In Minister for Immigration & Multicultural Affairs v Perera (2001) FCA 1212 it was suggested (at [24]) that comments made by Mason CJ in Bond supported statements made in other decisions of this Court to the effect that "illogical findings of fact or reasoning will not, without more, ground judicial review" under s 476 of the Act. Perera (at [28]) went on to note that "rationality and logic are cultural, not necessarily, legal concepts". In some cases that distinction may be appropriate, but where those terms are used in the authorities discussed in these reasons, they have no colloquial or cultural connotation and bear the ordinary meanings ascribed to them.

46 In Bond (at 355-357) Mason CJ pointed out that, to that point, the High Court had not adopted English authorities which suggested that findings or inferences of fact per se were reviewable for error of law under the rubric of "want of logic". In particular his Honour said as follows (at 356):

"Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place." (Emphasis in original.)

47 None of the foregoing is controversial. If the material before the decision-maker provides a reasonable basis for a finding made, or an inference drawn, no error of law can be said to arise in respect of the finding made, or inference drawn. However, experience dictates that want of logic or rationality in making findings, or drawing inferences, of fact is likely to point to, or reveal, the existence of an error of law. (See: W396/01 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 103 at  [33].)

48 The comments made by Deane J in Bond (at 366-367), referred to by Gummow J in Eshetu above, are pertinent. The error of law identified by Deane J was the lack of rationality, or of reasonableness, in the decision by reason of it being based on findings or inferences of fact made, or drawn, in the absence of "some probative material or logical grounds". The need for rationality, or reasonableness, in the decision was said to be a corollary to the requirement that the decision-maker act judicially by according procedural fairness.

49 In Bond (at 387) Toohey and Gaudron JJ stated general agreement with the observations of Mason CJ as to the grounds on which factual findings may be reviewed, but their joint reasons (at 384-386) made it clear that they understood that want of logic in an administrative determination may give rise to an argument that the decision-maker had erred in law.

50 In Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ appeared to acknowledge (at 578) that want of logic in an administrative decision could establish an error of law.

51 In the Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 the joint reasons of Gleeson CJ, Gummow, Kirby and Hayne JJ (at [34]) stated that a decision based on the existence of an opinion or satisfaction, required the opinion or satisfaction to be formed reasonably upon the material put before the decision-maker, and cited the comments of Gummow J in Eshetu (at [127]-[145]) in support of that proposition, namely, that the decision-maker could not assume jurisdiction to make a decision under the Act by forming the opinion or satisfaction required without probative material or logical grounds to support that opinion or satisfaction. (See also: Re Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 per Gaudron and Gummow JJ at [38]-[42]; Eshetu per Gaudron and Kirby JJ at  [101]; X v Commonwealth [1999] HCA 63; (1999) 167 ALR 529 per Kirby J at [136]; Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161 per Fitzgerald JA at 212.; Airo-Farulla "Rationality and Judicial Review of Administrative Action" (2000) 24 MULR 543.)

52 Put another way, the absence of probative material or logical grounds to show an opinion or satisfaction to have been formed rationally, will demonstrate jurisdictional error and grounds of review will arise under s 476(1)(b), (c) or (e) of the Act. (See: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 per Gaudron J at [43]; McHugh, Gummow and Hayne JJ at [82]-[85].)

53 In terms which echoed the observations made by Deane J in Bond (at 366-367) as to the requirement for an authorised decision to be one grounded on procedural fairness, Gleeson CJ said as follows in Re Aala (at [2]-[4]) in determining that constitutional writs should issue to correct administrative error by the Tribunal based on an erroneous finding or conclusion that, in turn, led to denial of procedural fairness in the decision-making process:

"The issues are whether, in the events that occurred, involving an erroneous statement by the Refugee Review Tribunal as to the material which was before the tribunal, there was a denial of procedural fairness,...The tribunal's conclusion that certain information given by the prosecutor was a concoction was based, in part, upon an unwarranted assumption as to what the prosecutor had previously told various authorities; an assumption which, according to the evidence, the prosecutor could and would have corrected had he not been inadvertently misled by the tribunal. It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the tribunal's ultimate conclusion would have been the same. But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. As a result of the conduct of the tribunal, the prosecutor was deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to his credibility. The circumstance that this resulted from an innocent misstatement does not alter the position. The question concerns the nature and extent of the statutory power exercised by the tribunal, and the condition that the power be exercised in a manner which was procedurally fair; not the good faith of the tribunal."

54 If a finding, or inference, of fact which bears upon the formation of a decision as to the satisfaction of the decision-maker, is shown to have been made when the finding, or inference, was not reasonably open, then the decision is not justified by probative material or logical grounds. That is to say, if it is demonstrated that a premise on which the decision was made is false, the decision cannot stand. The decision-maker will not have made a decision that he or she was authorized to make by the Act. As stated in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (at 179):

"If...an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." (Emphasis added.)

(See also: Yusuf per McHugh, Gummow and Hayne JJ at [82]-[85]).

55 The foregoing passage in Craig is consistent with the observations made by Mason CJ in Bond (at 359) after his Honour referred to the following extract from Minister of State for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77 at 80:

"Thus, decisions may be set aside because, being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or because there was no evidence or other material sufficient to justify the making of the decision or the decision was so unreasonable that no reasonable person could have so exercised the power. The making of, or failure to make, a particular finding of fact in the course of the reasoning process may equally be attacked on any such ground. The taking into account of a fact found unreasonably or the failure to take into account a fact that a reasonable decision-maker would have found and taken into account provides a ground of review under ss 5(1)(e) and 5(2)(a) and (b) of the ADJR Act." (Emphasis added).

56 With regard to the words in emphasis, his Honour was concerned that those words not be understood as constituting judicial recognition of a right to obtain review of a finding of fact under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") independently of the review of an ultimate or operative determination. His Honour had said, earlier in his reasons in Bond (at 338), that antecedent conclusions or findings which contribute to an ultimate or operative decision will become examinable for error when the reasons that are given for the making of the decision and the processes by which the decision was made are exposed for consideration in the conduct of the review. After citing the foregoing passage from Pashmforoosh, his Honour said (at 359-360) that in accordance with what he had already said, (at 338), in the conduct of such a review:-

"...a finding of fact will...be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts..."

57 Subject to the limitations upon the grounds of review available under the Act introduced by amendments made subsequent to Pashmforoosh and Bond, and disregarding the nature of a decision able to be reviewed under the ADJR Act, it is apparent that the Chief Justice's observations on the scope of judicial review had like relevance to review of a "judicially-reviewable decision" carried out under ss 475 and 476 of the Act.

58 By reason of the misunderstanding of the Tribunal as to the material which was before it and the failure of the Tribunal to have regard to relevant material by reason of reliance upon that misunderstanding, ground for review arose in this matter under s 476(1)(b) (absence of jurisdiction to make the decision); s 476(1)(c) (a decision not authorised by the Act) or s 476(1)(e) (failure to properly interpret the law or to apply it correctly to the facts found). (See: Yusuf per Gleeson CJ at [4], [10], Gaudron J at [43], McHugh, Gummow and Hayne JJ at [76] - [83].)

59 Counsel for the appellant further submitted that jurisdictional error arose when the Tribunal failed to obtain and consider relevant material in conducting its review of the Minister's decision. The error was said to arise when the Tribunal failed to exercise a discretion under s 427(1)(d) of the Act to obtain a report from DFAT on the authenticity of the "Warrant". Section 427(1)(d) of the Act authorised the Tribunal to require the Secretary of the Minister's Department to "require the Secretary to arrange for the making of any investigation...that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation...". In the extract from the DFAT report dated 4 July 1997, set out above, DFAT informed the Tribunal that it was in a position to establish whether a particular case existed in Iranian courts.

60 His Honour found criticism by counsel of the Tribunal's failure to act under s 427(1)(d) to be fully justified and stated that it was remarkable that the Tribunal had not used the power. However, his Honour found that the failure of the Tribunal to exercise the power did not attract a ground of review provided by s 476 of the Act.

61 It may be accepted that no general duty is imposed on the Tribunal by s 427(1)(d) of the Act. (See: Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553 at 560-561; Re: Minister for Immigration & Multicultural Affairs; Ex parte Cassim [2000] HCA 50; (2000) 175 ALR 209 at  [13]). However, if circumstances exist which show the need for further enquiry to be obvious, and the means for conducting such an enquiry to be reasonably available, those facts may show the refusal of the Tribunal to exercise such a power to have been arbitrary or capricious. (See: SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1377 per von Doussa J at [35]-[37].) Before the failure of the Tribunal to exercise the power granted to it by s 427(1)(d) of the Act may be said to disclose such a ground of review, it will be necessary for facts to be established that show the conduct of the Tribunal to have been arbitrary or capricious. If that requirement is satisfied, the Tribunal may be said to have made a determination in the absence of jurisdiction or authority and ground for review of such a determination will arise under s 476(1)(b), (c) and perhaps (e), of the Act. (See: Azzi v Minister for Immigration & Multicultural Affairs [2002] FCA 24 at [112]- [113]).

62 His Honour was of the view that it was remarkable that the Tribunal did not use the power provided to it by s 427(1)(d) when the failure so to act may have done serious injustice to the appellant, and noted that the conduct of the Tribunal was "compounded by the fact that the Tribunal member treated the inauthenticity of the `warrant' as a reason for treating the [appellant] as a person unworthy of belief".

63 His Honour said that failure to seek readily obtainable information may have the effect of making a decision unreasonable and referred to Luu v Renevier (1989) 91 ALR 39 at 49-50. His Honour then stated that "that ground of review" had been excluded by s 476(2)(b) of the Act which states that it is not a ground upon which application for review of a "judicially reviewable decision" may be made that the decision involved an exercise of power that was so unreasonable that no reasonable person could have so exercised the power. It does not appear to have been submitted to his Honour that the conduct of the Tribunal in refusing to exercise such a power provided ground for review under s 476(1)(b), (c) or (e) of the Act.

64 Although the reasons provided by his Honour show that, if submitted, such grounds would have been arguable, it does not appear to have been established before his Honour that, at the time of the Tribunal's decision, the means of conducting a sufficient enquiry would have been reasonably available to the Secretary if the Tribunal had requested the Secretary to enquire and report. If such a submission had been made, his Honour may have been prepared to infer from the material before him that the necessary enquiry could have been readily conducted if requested by the Tribunal, but in the absence of such a finding the ground now relied upon could not be said to have been established.

65 For the reasons already set out, however, I am satisfied that an order for review may be made under s 476(1)(b), (c) or (e) of the Act. The appeal must be allowed and the matter returned to the Tribunal for determination pursuant to the Act.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated: 20 December 2002

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W389 of 2001

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:	W389/01A Appellant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGES:	LEE, RD NICHOLSON and FINKELSTEIN JJ
DATE:	20 DECEMBER 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

RD NICHOLSON J:

66 In this appeal I have had the opportunity of considering in draft the reasons of Lee J. I rely on those reasons for the comprehensive statement of the facts and circumstances relevant to the appeal which they provide.

67 The primary judge said in his reasons that the Tribunal member had plainly rested her conclusion on the fact that the document tendered by the appellant was called a "warrant" but DFAT information was that arrest warrants are not given to the person charged or a member of that person's family. He was critical of this reasoning but said it was another matter whether that established a ground of review available to the appellant under s 476 of the Migration Act 1958 (Cth) ("the Act"). Because of the provisions of s 476(2)(b) of the Act he rejected the application of a ground of unreasonableness. He also rejected the application of s 476(1)(d), improper exercise of the Tribunal's power, because of the exclusions from it, and s 476(1)(e) because the improper characterisation of the foreign document was not an error of law.

68 Turning to the question of jurisdictional error he said:

"However, such conduct may be a jurisdictional error covered by s 476(1)(b): see Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 at para 82. Accordingly, if the Tribunal's neglect to inquire about the warrant amounted to taking into account an irrelevant consideration or a failure to take account of a relevant consideration, the applicant might have an available ground of review. The difficulty, as it seems to me, is that the Tribunal's failure to inquire was neither of these things. The document was clearly relevant to the applicant's case; that is why the applicant provided it to the Tribunal. The Tribunal gave it careful consideration, and took it into account in reaching its final conclusion, as the applicant had wished. The applicant's difficulty is that the Tribunal treated the document as detrimental to, rather than supportive of, his case. If that was an error, it was because of a factual error by the Tribunal, in relation to categorisation of the document, rather than an error of methodology or reasoning."

69 The starting point on the appeal must be the statutory language in s 476 of the Act. In view of the provisions in s 476(2)(b) excluding from all grounds under subs (1) issues of unreasonableness, I am not inclined to turn to authorities in other statutory environments where reasonableness may have been properly in issue. I prefer to turn to the explanation of the provisions of s 476 given recently by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 particularly at [82] where McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed, relied on what was said in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179. It is necessary to turn to examine the facts at issue on the present appeal to ascertain whether pars (b), (c) and (e) of s 476(1) as there explained have been engaged in this case. In doing so it must be borne in mind that in Yusuf at [82] their Honours said that "jurisdictional error" as explained in the passage cited by them from Craig is not exhaustive.

70 As the reasons of Lee J make apparent, the Tribunal dealt in the following way with the three photocopies of documents received by the appellant by facsimile transmission from Iran and forwarded to the Tribunal with the advisor's letter dated 8 December 2000. The first of the documents, the "certificate" from the appellant's employer, was accepted by the Tribunal as supporting the appellant's account as to the nature of employment in Iran. The second document, the "warrant" was, after receipt of the appellant's submissions, found by the Tribunal to not be legitimate. In reaching that view the Tribunal did not consider it necessary to ascertain whether the offer by DFAT to have the authenticity of the document tested should be accepted. The third document was the letter from the appellant's brother in Iran which the Tribunal found to be self-serving in the circumstances.

71 The issues which can give rise to jurisdictional error were referred to in Yusuf at [82]. The first is the identification of a wrong issue. The treatment by the Tribunal of the "warrant" and the letter does not in my view fall into that description. The second is the asking of a wrong question. Again, the Tribunal's treatment of these matters does not fall into that description. The third is ignoring relevant material. That is not the case in respect of either of those documents. The word "ignore" means "to refrain from noticing or recognising": The Macquarie Dictionary 2^nd ed. 1992 at p 877. The Tribunal did not ignore the relevant information; rather it gave it cognisance but did not decide in accord with it. This was not a case of disregard of material information in the sense of ignoring that information, only in not be persuaded by it. The fourth is placing reliance on irrelevant material. Again, that would appear to have no application. The material represented by those documents was clearly relevant and treated as such.

72 The next category identified in Craig and accepted in the reasoning previously referred to in Yusuf is the making of an erroneous finding and the reaching of a mistaken conclusion "at least in some circumstances". However, in par [84] their Honours emphasised that "factual error by the tribunal will not found review". That was a reference to the terms of s 476(1)(e). It is not explained in the reasoning of their Honours how the making of an erroneous finding or reaching a mistaken conclusion "at least in some circumstances" as referred to in Craig is to be reconciled with the proposition that jurisdictional error will not arise from factual error. Indeed, in pars [82], [83] and [84] the reasoning of their Honours following the citation from Craig focuses on the first four categories of error of law there referred to and not on erroneous findings or mistaken conclusions.

73 Turning to s 476(1)(e), this is not a case where it can be said the way in which the Tribunal proceeded involved an incorrect interpretation of the applicable law. Whether the Tribunal incorrectly applied the law to the facts as found depends on the manner in which the Tribunal dealt with the issue of the "warrant". That raises the issues of whether the Tribunal should have made further inquiry as to the authenticity of the document or should have considered whether it ought to have done so. If it is the case that the law in the circumstances gives rise to a duty to consider the exercise of the power to investigate, it would have been wrong for the Tribunal to have applied the law without regard to that duty. That is, if it is the case that a duty to consider whether to exercise the power of investigation can arise in circumstances being exceptional or rare I think the relevant ground of review which would be activated would be s 476(1)(e) so far as it refers to an error of law being an incorrect application of the law to the facts.

74 The Tribunal has a power of investigation pursuant to s 427(1)(d) of the Act for the purposes of the review of a decision to require the Secretary to arrange for the making of any investigation that the Tribunal considers necessary and to give to the Tribunal a report. It is well established that the power does not impose any duty on the Tribunal to make further inquiries: Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553 at 561; Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274; Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim [2000] HCA 50; (2000) 175 ALR 209 at [13].

75 However, it is unresolved by authority whether circumstances can give rise to an obligation on the Tribunal to consider whether it ought to exercise the power of investigation: cf Majeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470 per Ryan J; Yusuf at first instance per Finn J; and Gomez v Minister for Immigration & Multicultural Affairs [2001] FCA 935 per Allsop J. The question therefore arises whether the circumstances in relation to these documents and particularly the "warrant" are such as should have given rise to a duty on the Tribunal to consider whether to exercise its power.

76 The circumstances in which a tribunal may have an obligation in the circumstances to consider whether it is necessary to exercise its power of further investigation has been the subject of dicta in a number of cases. For present purposes I am generally content to rely upon the recent summary of relevant authorities appearing in the reasons of Allsop J in Azzi v Minister for Immigration & Multicultural Affairs [2002] FCA 24 at pars [106] - 114]. His Honour said at par [108]:

"The applicant's submission was that the authorities are not settled on the question of whether a failure to consider whether to obtain additional evidence gives rise to reviewable error (although it was accepted that the proposition that there is a reviewable obligation actually to exercise the power has been rejected on numerous occasions). Reference was made by Mr Leeming to the decisions, said to be in favour of the proposition, in Sellamuthu, supra; Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 289 and Al Shamry v Minister for Immigration and Multicultural Affairs [2000] FCA 1679 at [38]- [42]. See also Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179, 192-93. However, as Mr Leeming properly points out, the proposition was specifically rejected in Yusuf v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 470. In that case Finn J approved of what was said by North J in Kulwant Singh v Minister for Immigration and Ethnic Affairs (unreported, 21 November 1996), in relation to whether s 427(1)(d) implicitly required the Tribunal to consider whether to arrange a medical examination so as to obtain further information. North J said:

The section is permissive. It gives the Tribunal a power. The Act does not require that the power be exercised, and it follows that it does not require the Tribunal to consider whether it should be exercised. Thus, although a failure to consider whether to exercise a power may be unwise in certain circumstances, it is not a failure to observe a procedure required to be observed by the Act.

Finn J acknowledged that a duty to consider whether to exercise such a power may arise at common law. At [20] he said:

This is not to say that the Minister or Minister's delegate or for that matter the Tribunal as the donee of the power is not, as a public official and as an holder of an office of public trust and confidence, obliged to consider whether or not a power so held ought be exercised.

Finn J's reasoning in Yusuf was not revisited by the Full Court on the appeal in that matter. It was cited with approval in Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 (Ryan J). See too Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [42] to [44]. No reference was made in Al Shamry to Yusuf (1999)."

His Honour continued at par [112]:

"It may be, notwithstanding prevailing authority, that a duty to enquire may exist or be seen to arise in certain circumstances, but these are understood as being exceptional or rare: Prasad, supra; Minister for Immigration & Multicultural Affairs v Amani [1999] FCA 1040; W41/01A, supra; Raheem, supra. Before the High Court's decision in Eshetu it had been said by the Full Court of this Court in Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 in relation to s 420 that any such duty that might exist would arise only in rare cases; cf McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50; (2000) 175 ALR 209 at [13]."

Allsop J then referred to his view expressed in Gomez that there could be circumstances thrown up by a particular matter in its context where it could be said those circumstances were such as to oblige the decision-maker to consider whether it ought to exercise the power of further investigation. I would add to the authorities referred to by Allsop J the reasoning of Weinberg J in Awan v Minister for Immigration & Multicultural Affairs [2001] FCA 1036 and Carr J at first instance in [WAEH] v Minister for Immigration & Multicultural Affairs [2002] FCA 6.

77 Are the present circumstances exceptional or rare? On one view, consideration by the Tribunal of its duty to inquire may have led to an appreciation by the Tribunal that verification of the authenticity of the "warrant" could have profoundly affected the Tribunal's view of the appellant's credibility. At the core of the adverse credibility findings lay the views of the Tribunal formed in relation to the warrant. Nevertheless, this may not be "exceptional or rare". In that respect I am influenced by the reasoning of Black CJ, von Doussa, Sundberg and Mansfield JJ in Singh at 561 where they said:

"In our view the respondent has fallen short of showing that the Tribunal's failure to make inquiries through official channels about the authenticity of the warrants involved a denial of substantial justice. The Tribunal gave reasons for concluding that the letters and the warrants that accompanied them were not authentic, and those were conclusions to which it was entitled to come. The Tribunal was given no information about the provenance of the warrants other than that they were forwarded with letters which it was entitled to conclude were not authentic. Moreover, although the failure to ask the Tribunal to exercise its power to make inquiries could not be decisive, there is nothing to indicate that it was ever suggested to the Tribunal by the respondent or by the migration agent who was assisting him that it should take any steps of its own to authenticate the documents in question.

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

78 It is not necessary for me to form a final view on the factual characterisation of the circumstances as exceptional or rare. That is because I hold the view that, on the present state of the authorities, there is no duty on the Tribunal to consider whether to exercise its power to investigate. I consider the reasoning in Kulwant Singh v Minister for Immigration & Ethic Affairs (North J, 21 November 1995, unreported) is correct.

79 In my view what the Tribunal did is correctly to be seen as dealing in fact not in law so that the only question is whether there are circumstances such as to make the finding in law erroneous or mistaken within the dicta in Craig cited at Yusuf at [82]. In the absence of further elucidation by the High Court of that concept, I am of the view that application of it is not open given the way in which the Court addressed the issue of factual findings in par [84] in Yusuf.

80 If that means there is a lacuna in the scope of review permitted to the Court either in respect of a duty to consider investigation or in relation to illogicalities in reasoning concerning facts, I do not consider that can be rectified by this Court.

Conclusion

81 For these reasons I consider the appeal should be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated: 20 December 2002

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 389 of 2001

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:	W389/01A Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	LEE, RD NICHOLSON, FINKELSTEIN JJ
DATE:	20 DECEMBER 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

FINKELSTEIN J:

82 The facts are set out in the judgment of Lee J.

83 I share Lee J's concern about the method by which the Tribunal arrived at its decision. However, while it is apparent that some of the alleged discrepancies that the Tribunal identified simply do not exist, that is not true in respect of all of them. Here I have in mind the second "discrepancy" concerning the divergence in the appellant's various accounts of events which occurred in Iran. Lee J says that the discrepancy may be explained as a misunderstanding of the appellant's account by the translator or a corruption of the appellant's account upon translation. But these are just two possibilities. Another is that the Tribunal was correct in its characterisation and, in that event, it could properly rely on the inconsistency in determining whether the appellant was a witness of truth. Moreover, even if the Tribunal was in error in deciding that there was an inconsistency, that error is simply a mistake of fact in respect of which judicial review is not available.

84 Moving to the Tribunal's rejection of the corroborative documents (the warrant and the letter from the appellant's brother), I think that while the Tribunal's reasoning process leaves a lot to be desired, and that few decision-makers would have reached the same conclusion, it seems to me, yet again, that the error is of fact and not of law.

85 Accordingly I would dismiss the appeal for much the same reasons as have been given by RD Nicholson J. I should note, however, that it has not been necessary for me to consider the correctness or otherwise of Kulwant Singh v Minister for Immigration & Ethnic Affairs (North J, 21 November 1996, unreported) or Azzi v Minister for Immigration & Multicultural Affairs [2002] FCA 24.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated: 20 December 2002

Counsel for the Appellant:	L B Price (pro bono publico)
Counsel for the Respondent:	P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 February 2002
Date of Judgment:	20 December 2002