Applicant in V346 of 2000 v Minister for Immigration & Multicultural Affairs [2001] FCA 1179 (27 August 2001)

Last Updated: 14 September 2001

FEDERAL COURT OF AUSTRALIA

Applicant in V346 of 2000 v Minister for Immigration & Multicultural Affairs [2001] FCA 1179

MIGRATION - review of a decision to refuse a protection visa - obligation of Refugee Review Tribunal to give applicant a real opportunity to give evidence and present argument - extent of obligation where Tribunal finds applicant has "concocted" certain evidence - whether Tribunal had induced applicant to believe that it accepted certain evidence - presumption that applicant has put before Tribunal all available evidence and arguments - obligation of Tribunal to give applicant particulars of information that would be the reason or part of the reason for affirming decision under review - whether that obligation extends to information about "common practices" - whether such information specifically about the applicant or another person - whether Tribunal's reasons set out its findings as to material questions of fact - effect of failure to do so - whether Tribunal has power to consider submission or other material furnished after decision has been written but before it has been handed down or given orally - whether Tribunal functus officio - discretion not to set aside decision of Tribunal notwithstanding that it involved an error of law - whether error denied applicant the possibility of a successful outcome - probative value of testimonials solicited or procured by applicant - whether no evidence or other material to justify making of decision - whether decision based on existence of a particular fact which did not exist.

Migration Act 1958 ss 424A, 425(1); 430, 430A, 430B, 430D, Pt 8, 476(1), (3) and (4)

Administrative Decisions (Judicial Review) Act 1977 ss 5(1) and (3)

Rajamanikkam v Minister for Immigration & Multicultural Affairs [1999] FCA 1411

Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023

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

De Silva v Minister for Immigration and Multicultural Affairs [2000] FCA 765

Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 264

De Silva v Minister for Immigration and Multicultural Affairs [1999] FCA 1834

Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1

Malik v Minister for Immigration and Multicultural Affairs [2000] FCA 562; (2000) 98 FCR 291

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

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

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

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

Inderjit Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 73

Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 417

Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919

Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370

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

Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212

Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236; (2000) 58 ALD 352

APPLICANT in V346 of 2000 v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 346 of 2000

RYAN J

MELBOURNE

27 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 346 of 2000

BETWEEN:	APPLICANT in V346 of 2000 Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	RYAN J
DATE OF ORDER:	27 AUGUST 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. There be no order as to the costs of either party of the application to this Court.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 346 of 2000

BETWEEN:	APPLICANT in V346 of 2000 Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	RYAN J
DATE:	27 AUGUST 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The applicant is a citizen of Pakistan who arrived in Australia on 17 September 1996. On 1 November 1996, he applied for a protection visa which was refused by a delegate of the respondent Minister on 11 June 1997. On 24 June 1997, the applicant sought a review of that refusal which was affirmed by the Refugee Review Tribunal ("the Tribunal") on 15 November 1997.

2 The applicant was born on 5 January 1973 and, after education at various establishments in Pakistan, graduated as a Bachelor of Commerce. Thereafter he pursued a variety of occupations until he entered Australia on a visitor's visa issued on 4 May 1995 to enable him to undertake a short course at an Australian theological college.

3 The applicant claimed to have been born into a Christian family and to have been subjected to discrimination from the Muslim majority at school and college. Nevertheless, the applicant said, he expressed to his Muslim peers a desire to pursue a course in a theological college. Early in 1994, he claims, he was wrongly accused of daubing anti-Muslim slogans on the walls of the house of the local Mullah. Those slogans included sentiments derogatory of the prophet Mohammed and the Muslim religion. On his account, he was thereupon arrested but his release was procured with the help of bribery by Christian activists, after which young Muslim fundamentalists vowed to pursue him until he was caught and killed. He claimed to have seen a fellow Christian murdered on the strength of a similar accusation. Thereafter, he asserted, he was taken to another part of the city by young Muslim men, badly beaten and left in a lane to die.

4 On the applicant's account, he was taken in by some Christian beggars and, because of fears of further harm from the Muslim fundamentalists, remained in their tents while his family treated his injuries. After further harassment of his family he went, after mid-April, to the house of a friend or associate, who was, himself, suffering persecution. The applicant lived with that associate and carried out Church work for six months until his whereabouts were discovered. He then fled to his aunt's home in Karachi where he lived for eleven months while working at a hotel as a cook and waiter. Then, according to the applicant, his antagonists found where he was, possibly after interception of his mail and telephone calls, and he returned to Lahore, living with various relatives until his whereabouts were again discovered. After unsuccessfully seeking help from the local Catholic Church, he returned to the associate's house until it was arranged for him to undertake a short-term course of religious studies in Australia. The applicant claimed that his family continues to suffer threats and harassment and he asked, for his own safety, that they not contact him in Australia. The basis of the applicant's claimed fear of persecution has been summarised by the Tribunal in these terms;

"The applicant claimed that Muslim fundamentalists are able to find people living anywhere in Pakistan. As they have contacts in many areas of government, they would be able to get his address from immigration or the airlines at his port of arrival and follow him. If they catch him, they may again accuse him of blasphemy and take him to court or the mob will kill him. He will suffer persecution because he worked with [an associate].

The applicant claimed that the police could harm him as they are influenced by the fundamentalists. The fundamentalists have already given his name to the police. They could obtain his location from the police. He does not believe that the authorities will protect him, as they are Muslim, and they think he has broken the religious law. Many police are corrupt because they are poor. They are under pressure from the Muslims. The police would not protect him or his family if they thought their jobs or lives were in danger.

On 22 January 1995, his sister, a nun, was travelling from her convent to the family home, when some fundamentalist men asked her where the applicant was. When she said she knew nothing of him, she was beaten and raped and subsequently died.

The applicant claimed that if he returned to Pakistan he would be persecuted for 3 reasons: firstly because he is a Christian; secondly because he was believed to have said something derogatory against Muhammad and the Muslim religion; and thirdly because he has fled the country. In regard to the second reason, he stated that the punishment for this crime according to Muslim law is death and there are many young religious Muslim men who would like to receive the blessing for causing his death.

If he returned to Pakistan, whoever he lived with in his extended family would be harassed, and it would be difficult for him to get a job because his employers would be harassed.

The applicant believes that the religious authorities would not want to bring his case to court as there would be too much foreign attention and the case against him might be unsuccessful as were the last 2 similar cases. His family is poor and would not be able to pay for legal representation."

5 The Tribunal, in its reasons, then reviewed what the applicant had said in an interview with a delegate of the Minister on 2 April 1997. In the course of that interview, the applicant recounted anti-Christian attacks to which he had been subjected by young men whom he had known since college. That account included references to wrongful accusations of blasphemy and detention for four or five hours at a police station, after which the Christian Association procured his release by bribery. When questioned by the delegate, the applicant indicated that no charges had been laid and no documentary record had been made after that detention.

6 In the course of the interview with the delegate, the applicant acknowledged that he had not been harassed during the eleven months of his stay with his aunt in Karachi. As rehearsed by Tribunal, the applicant's account, as expanded during the interview, continued;

"While he was living with his aunt, he did not go to church at all but just prayed himself. His aunt's family was Christian but they did not attend church regularly as they were very busy. He did not go with them. He was very careful. He wore a cap and walked the streets carefully. He could not sleep at night. He was afraid. He believed the Mullahs in Karachi were asked to look out for him although this could be difficult in a city of 12 million people. He had called his mother and written to her, and he knew Muslim ladies visited his mother's house. He was not threatened in Karachi but his mother said that the Mullahs were keeping an eye on the area and his aunt was worried, so in September 1995 he returned to Lahore.

For 11 months he stayed with relatives and did nothing except pray. He could not go out, and he could not work. He thought of his future. In August 1996 he moved to [an associate's] house because his sister told him that she could not take any more and she wanted him to go somewhere else. During these 11 months he had no direct problems. His sister lived one hour from his mother's house and when she visited her, his mother told her that "they" were looking for him and he should stay inside. He was scared someone was looking for him."

7 The delegate extensively questioned the applicant about the arrangements made for his travel to Australia. That questioning elicited that the applicant had paid 18,000 in Pakistani money, to make the trip. It also revealed, as summarised by the Tribunal, that;

"The applicant said that he did not know about the others, but he had told the organiser that people were looking for him to kill him and that he knew that these people had already killed his brother and sister.

The applicant claimed that if these people really wanted to find him, they could, and they are still looking for him. He said, "They believe I'm a blasphemer but I'm not a blasphemer." He was asked why he thought he was allowed to leave the police station if they were keen that he was a blasphemer and, "Why were not charges brought against you?" He responded that the police were paid money and because of this money they did not record anything. They agreed that they would not keep a record and would spare him. As there is corruption, monied people who have been arrested can pay money to the police and are released, and later somebody might kill them.

The applicant claimed that he would be killed. Christian people are killed and nobody knows. It was suggested that he could return to Karachi and he responded that "they" had spoken to his aunt's neighbours and are still looking. If they knew that he was in Australia they would try to find him here.

He obtained his passport in May 1995 while living in Karachi. The applicant was asked why, if he was in fear of his life, he had taken so long to leave the country. He responded that he had been trying to leave the country and had been asking people if there was anywhere he could get out. He was asked why he had not gone to India or Thailand. He said it is difficult for a Pakistani to do so.

Both he and his family asked many people about getting him out of Pakistan. People offered to send him to USA and Canada but he could not afford the price they asked. The delegate pointed out that it was easier to go to Thailand or India as they did not require a visa for the holder of a Pakistani passport. The applicant responded that India does not trust Pakistanis.

The applicant said that as a Christian, he has no value in his country. He reiterated, "I am not a blasphemer." He said "they" would not spare him even if it took a few months."

8 After referring to the delegate's decision to refuse the applicant a protection visa, the Tribunal reviewed a written submission made to it on behalf of the applicant on 23 September 1998, which the Tribunal summarised in these terms;

"The applicant claimed that his older brother ..... had been employed in a factory in Lahore, where on one occasion other employees criticised his religion, which he defended. This defence caused them to accuse him of blasphemy against Mohammed. One evening in the following week he did not return home from work, and eventually on ..... his decomposed body was found in a field. The family contacted the police to report his death and were obliged to bury him quickly. No FIR was prepared by the police who demanded that his parents keep quiet otherwise they would be in trouble. They said his brother deserved to die because he was a blasphemer. There was no-one in authority to whom they could complain as Islamic fundamentalists have power in all levels of government.

The applicant stated that he heard from his younger brother ..... that in the first week in August 1997, Muslim fundamentalists had come to the family home and demanded to know where the applicant was. When they said they did not know, the Muslims broke his father's arm and his brother's leg. The fundamentalists told his parents that they would find him and put a series of advertisements in newspapers asking for information as to his whereabouts.

The applicant claimed that on 12 November 1997, when his father was bringing the applicant's sister ..... home from work on his bicycle, they were confronted by fundamentalists demanding to know where the applicant was. His father was bashed and his sister was abducted for 2 days and raped. They felt they could not go to the police. His brother left home and the applicant does not know where he is.

The applicant claimed that on 15 December 1997 his family was again visited by fundamentalists who struck his mother, as a result of which she lost an eye. He has been unable to get in touch with his family since that date. However on 3 July 1998 his brother sent him a fax saying that on 19 June when he was visiting the family, the fundamentalists raided the house at night, questioned the women and forcibly removed [his sister], who was still missing. They sent a letter demanding the applicant's whereabouts otherwise the family would never see her again. They cannot go to the police as the fundamentalists will kill her.

The applicant claimed that if he returned to Pakistan he would be killed even if he did not return to Lahore. The fundamentalists traced him to Karachi before. They have strong networks throughout the country and the government is unwilling or unable to control their behaviour."

9 The Tribunal also noted a translation of a facsimile message received in the Anglican diocesan offices in Melbourne on 3 July 1998, allegedly from the applicant's younger brother, containing information similar to that given by the applicant. As well, the Tribunal noted a submission from the Refugee and Immigration Legal Centre ("RILC") of 12 July 1998 as to which the Tribunal said;

"The submission refers to the applicant as a committed Christian who applied to come to Australia in order to undertake religious training, and that his commitment to Christianity is reflected in the supporting material, and in his flight to Australia in order to pursue his religious studies. (The Tribunal notes that the applicant gave oral evidence that he had never had any intention of undertaking the course of religious training). The submission states that the delegate had noted that the applicant had been arrested but had been released and not charged under the law, and that the delegate had relied upon the fact that the charges against the applicant were not pressed by local Islamic clerics, and that presumably there was insufficient information on which the police could proceed. The delegate had also said that government imposed procedural changes had made the registration of blasphemy charges more difficult. However, the applicant's sister, a nun, had been raped by Islamic men and later died, his brother had been killed by Islamic fundamentalists, his mother had been assaulted, and the applicant himself assaulted by Muslim youths following false allegations of blasphemy against him. Reference was also made in the submission to the positive steps made by the government, namely the procedural changes which have resulted in a significant drop in blasphemy charges against Christians, the government's firm response against the anti-Christian riots, and the Government Christmas party for 2000 Christians in Lahore with promises by the Prime Minister of equal opportunity for all and an end to discrimination and prejudice. The writer described these initiatives as knee-jerk reactions and hollow rhetoric. It was also noted as of June 1997 that the 6 men (3 of whom were Christians) sentenced to death under section 295C had all been acquitted on appeal and that their convictions had been based on little evidence."

10 The applicant also gave oral evidence before the Tribunal on 15 and 20 October 1998, in the course of which he acknowledged that he had been involved in acrimonious exchanges with Muslim youths, including a Mullah's son. Some of the words he used, which were concededly blasphemous to Muslim ears, had been included in slogans painted by Muslim youths on the walls of the local Mullah's mosque on the afternoon before he was detained. The Tribunal continued;

"The applicant told the Tribunal that he accepted that he had spoken blasphemy but denied that he had written it. On the night of ..... some fifty and sixty year old people came with the police and took him to the police station. His mother contacted Christian Action Troop (CAT). The applicant said that he had been working for them in the villages bringing the gospel to the people. The CAT people came to the police station because he was an important person to them. They bribed the police and asked them to let him go for one night saying that they could arrest him the next day. The police prepared an FIR that day.

The Christian Association people took him to their office and he stayed with them. The next day there was a hearing in the High Court for a Christian man so they took him along to the court in their car. He sat outside in the car among thousands of people. He saw his "brother" shot dead by Muslims.

When he returned home to pick up his clothes, 30 or 40 fundamentalists were there. They took him to another part of the village, hit him, broke his collar bone and when he was unconscious they raped him. He explained how he was found by poor people who took him to their tents where his mother looked after him. She forced him to eat for 20 days. He prayed to die because of the pain which he could not explain to his doctor and mother."

11 The associate mentioned in [4] and [6] of these reasons also gave evidence to the Tribunal on behalf of the applicant. In its rèsumé of that evidence, the Tribunal noted various inconsistencies between it and the applicant's claims. The Tribunal's summary of the associate's evidence concluded with this paragraph;

"[The associate] said that in 1994 he had a problem with the fundamentalists when he was accused falsely of blasphemy. He wrote for the cathedral newsletter and he was accused and imprisoned illegally at the end of March 1994. He spent 3 weeks in prison before the Bishop obtained his release. He then went underground with his friends and relatives in Lahore. He was in hiding for 2 years. He could not work for 5 or 6 months after his release as he had been badly injured in prison. After the applicant left for Karachi, [the associate] was in trouble, fearing he would be detected by fundamentalists. He and his family moved to several places right up until he left for Australia. His Bishop organised everything for him. Mr. [S] organised his passport for him. [The associate] said that if the applicant returns to Pakistan he will be killed as the people are after him."

12 Evidence was also given to the Tribunal on behalf of the applicant by two Anglican clergymen, Dr Murray Seifert and the Reverend Jim Houston, and general testimony was taken by telephone from the former Anglican Archbishop of Melbourne, Dr Keith Rayner.

13 Under the heading "Findings and Reasons", the Tribunal criticised what it regarded as enlargements, extensions, variations and embellishments of the applicant's claims to refugee status. It explained that criticism as follows;

"In his original application, statutory declaration of 31 October 1996 and interview with the delegate, the applicant had been definite that he had not blasphemed and gave no evidence of any critical remarks made by him of the Prophet Muhammad. He was also clear that no charges had been laid against him and that there was no FIR issued against him. There was no mention of any change in these claims in his submission of 9 July 1998, lodged on 23 September 1998 or in the submission from RILC dated 12 July 1998. However in the Confidential Psychological Report of Karen Chugg, Counsellor/Advocate, The Victorian Foundation for Survivors of Torture Inc., dated 15 September 1998, the applicant's claims as reported have been enlarged and changed by him. In that report he claimed to have criticised the Muslim religion and their Prophet. He claimed that on that afternoon, the young men or students put slogans on the wall of the local Mullah's Mosque (which action was wrongfully attributed to the applicant) and that some of the words were dirty and some were his own words. The applicant had originally said that he would never say such things as the slogans painted on the wall. He now enlarged and varied his evidence: he claimed that the students and Mullahs consulted with the police and provided the 5 witnesses to blasphemy required for a conviction. He claimed he was arrested, and that, at the police station, the police completed a FIR. Three of the men who signed the charge were Mullahs, aged between 50 and 60 years and highly respected in the community. However he claimed a Christian organisation bribed the police to release the applicant temporarily for one night. The applicant fled to his parents' house to obtain his clothes where he was apprehended and beaten by students and a Mullah, and his collarbone broken. He was also raped. The applicant repeated his changed evidence concerning blasphemy and the FIR, and his new claim of rape, at the hearing."

14 After noting that it had put those changes to the applicant, the Tribunal continued;

"The applicant said that he had told the truth regarding the Islamic Religion, the Koran, and their Prophet, and queried why this should be considered blasphemy. Asked why he had not told the delegate what he now claimed he had said, he responded that the delegate had not asked him for more detail, that the interview lasted 40 minutes, and that it had been written only briefly in his Statutory Declaration. He needed to explain in proper detail what he was saying. The Tribunal notes that the delegate asked questions of the applicant regarding this alleged incident and returned to this matter again at a later stage in the interview, providing him with ample opportunity to present his claims. For the above reasons, the Tribunal does not find this explanation to be credible, given that he had not made these claims until his interview with Ms. Chugg as reported on 15 September 1998, two years after his arrival in Australia, and after the rejection of his claim by the delegate. The Tribunal finds that the applicant altered his version of events in order to bring himself more positively within the ambit of section 295C of the Penal Code in response to the rejection of his claims by the delegate. (Section 295C, which is a 1986 amendment, established the death penalty or life imprisonment, for directly or indirectly defiling the sacred name of the Holy Prophet Mohammed; in 1991 the court struck out the option of life imprisonment). The Tribunal does not accept this later version of the applicant's alleged remarks for all the above reasons."

15 The Tribunal further explained that it regarded the new claim of what the applicant had said to the students and young men shortly before his detention as rehearsed, as were his repeated claims that his parents had considered him as a child to have been unlike other children and that also as a child he had locked himself in a room and prayed to Jesus. The Tribunal also regarded as not credible, for reasons which it explained, the applicant's account of how the FIR had come into existence and a purported copy of it had been sent to Australia. The Tribunal then made this observation;

"In both the earlier and later versions of this alleged incident described by the applicant, the local Mullahs were alleged to have been actively involved, and in particular, in the instigation of the complaint to the police, and also to have been present at the police station to make and sign the complaint which was being made and processed against the applicant. Given both the importance placed by the applicant on the power of the Mullahs and of the fundamentalist Muslims, and of their extensive networks, which he is claimed to fear, and of the fact that Pakistan is an Islamic Republic, the Tribunal finds it is not credible that if an FIR had been made by these Muslims against the applicant, the police would circumvent these powerful persons and their network by releasing the applicant for even one night."

16 As to the purported copy FIR, the Tribunal noted that it had sent two copies of it, together with a translation, to the Document Examination Unit for examination and comment and made these findings;

"The FIR, dated ....., (the date the applicant claimed he was arrested by the police on the afternoon of which the slogans were painted, but not the time, namely the evening), purports to have been made by ....., and who does not appear to have signed the document as the document on its face states is required. The crime is "295C Blasphemy against the Prophet." [The applicant] is accused of writing blasphemy on the wall, then coming to the complainant's house and speaking blasphemy and firing his hand gun in the air.

The Document Examination Unit reported that the document was similar to other unauthenticated documents, that as the document was totally photocopied it was difficult to say what, if any of the text was preprinted and what was hand written, and also as a photocopy it was impossible to detect any alterations or erasures. It referred to the wet stamps, one of which is illegible, and stated that for what it was supposed to be, ie, a police report, it would be reasonable to expect it to be a pro-forma document with some pre- printed text, including the numbers on the upper right hand side of the document, which also appeared to be hand written. The conclusion was that the report was not an original document. It is generally impossible to authenticate any photocopied document, let alone one as poorly reproduced as this one.

The applicant's response to the report is accompanied by another photocopy of the document, claimed to be clearer, with what is claimed to be the pre-printed areas highlighted. It also contains a line, not evident in the earlier copies which contain ruled or printed lines which are successfully reproduced in the photocopies, which appears to indicate a division, but not a printed or ruled line, between the essentially official top half or pro forma portion of the document and the handwritten report of the case against the applicant below, this division being partially covered by hand writing.

The Tribunal is unable to rely on this document. Apart from the fact that it is a photocopy so that it is impossible to detect any additions, substitutions or erasures, and cannot be unequivocally authenticated, the Tribunal has not been provided with the provenance of this document, other than that a "lawyer" obtained it from the police station. The applicant claimed his parents contacted a lawyer (not named) who got it from the police station. Asked how his parents knew that it existed, the applicant claimed that he (the applicant) knew it was prepared at the police station. However the Tribunal has found that this information was not part of his original claim, which claim the applicant swore was true and correct, and has found his later claims concerning the FIR not to be credible. In addition the Tribunal has noted above internal flaws in the document. In addition, the scenario of events as set out in the alleged FIR, with the applicant visiting the complainant's residence, blaspheming the name of the Prophet and firing shots from his handgun is extremely fanciful for what is claimed to be a crime report. The Tribunal notes that the alleged FIR is a photocopy. In relation to photocopies, the Document Examination Unit has observed that in such documents it is a simple matter to make substitutions and alterations. The Tribunal is unable to place any weight on this document for the additional reason that it is a photocopy. The Full Federal Court (Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ) in MIEA v Singh (1997) 144 ALR 284 at 291 observed that there is no general rule to the effect that the Tribunal is under a duty to verify the authenticity of such documents as FIRs and warrants."

17 The Tribunal expressed similar reservations about documents obtained by facsimile transmission, especially when their provenance cannot be verified by reference to a transmittor's number. In the same context, it was indicated that the purported copy of the FIR had not been produced until two years after the applicant's arrival in Australia, and then only after his claim had been rejected by the Minister's delegate. The Tribunal recorded its findings in respect of the FIR in these terms;

"As mentioned previously, the Tribunal does not find credible the applicant's evidence and explanation regarding the FIR at his Tribunal hearing. In addition, despite his claim that an FIR had been issued against him for a most serious offence in ....., the applicant was able to leave Pakistan without trouble, legally, and on his own passport, which was issued after the FIR was allegedly lodged. An Exit Control List which is constantly being revised is used to prevent the departure of wanted criminals and individuals under investigation for various offences (US Department of States Country Reports on Human Rights Practices for 1997 - Pakistan). The Tribunal concludes for all the above reasons, this document is fraudulent and is unable to give it any weight. It finds for all the above reasons that no FIR had been issued against the applicant."

18 Later in its reasons, the Tribunal advanced a further ground for rejecting the applicant's reliance on the FIR and other documentary material, observing that corruption and documentary fraud is rife in Pakistan where "any kind of civil documentation may be purchased or obtained from friends, relatives or personal contacts." It was similarly noted that the publication in a newspaper of a name or event could readily be corruptly procured.

19 The Tribunal next rejected the applicant's claim that the authorities in Pakistan could not protect him if he were to return to that country. That claim was regarded as inconsistent with the applicant's assertion to have been released from custody after accusations of the serious offence of blasphemy had been made against him. As to that matter, the Tribunal said;

"The applicant claimed to live in a Muslim community. The Tribunal does not accept that Mullahs and leading members of the Muslim community provided evidence to the police of alleged blasphemy by the applicant and sought to have him charged, and that the police instead favoured the Christians. If the applicant had been taken to the police station and then released (and the Tribunal does not accept that either of these events occurred, for the above reasons) he would have been released because no charges were laid against him; if any allegations had been made against him, there was no evidence to sustain such allegations, given that he was released."

20 The Tribunal also noted that the applicant had changed his account of what he had said about the prophet Mohammed as to which it made this finding;

"The Tribunal finds such evidence to be too significant to have been overlooked earlier and that it was provoked by the rejection of his claim. The Tribunal finds it is not plausible that the applicant would be released by the police without charge or even released for a night if he had made such remarks, nor, for all the above reasons, even on the basis of the remarks he was alleged to have made according to his original claims."

21 As well, the Tribunal noted further new claims made, or additional information provided, by the applicant, some of which were inconsistent with, or not supported by, documentary evidence on which he relied. In the same context, the Tribunal rejected as self-serving, a letter of 14 November 1996 from a Pakistani national reciting that the applicant "was threatened to be involved in different cases under Act 295C which is punishable by death and cannot be challenged in any court. I ...... arranged for his release from police lockup and paid for his travel expenses to Australia." After noting from "country information" that cases under s 295C "had been routinely challenged and appealed and that no-one has been executed by the state under these provisions", the Tribunal concluded;

"For the above reasons, the Tribunal finds that the above evidence and letters of support including those concerning the alleged arrest of the applicant are selfserving and are not consistent. This supports the finding of the Tribunal that the applicant was not arrested and taken to the police station."

22 For reasons similar to those summarised in [17] above, the Tribunal rejected a document purportedly from a hospital in Lahore reciting that the applicant had been treated for twenty days for upper chest and head injuries with dyspnoea and generalised abrasions. In respect of the applicant's claim of a broken collarbone, the Tribunal found that "such injury, if sustained, was not sustained for a Convention reason."

23 The Tribunal also rejected as "second-hand" a general testimonial dated 21 December 1997 in support of the applicant from Sr. M. Acacia of the Missionaries of Charity. Other documentary evidence tending to support the applicant's claim that his mother had suffered an eye injury and by way of "country information" about the situation of Christians in Pakistan was similarly rejected. The second of those documents contained additional sentences to the effect that Muslim fundamentalists would be encouraged to kill the applicant. The Tribunal then found the applicant's claims to have passed his examinations at the end of 1994 to be inconsistent with his claims to have been in hiding at that time. As to the applicant's claims to have proselytised on behalf of the Christian faith as supported by a letter from the Christ Link Organisation ("CLO") the Tribunal said;

"The Tribunal notes that the applicant has never claimed to have worked in remote areas but only in areas around Lahore to which he claimed he rode his pushbike on free afternoons. If the applicant was distributing Christian literature to Muslims, this could have provoked trouble for the applicant, according to country information, (below), and any converts to Christianity would also have placed themselves in danger, but the applicant has never claimed he provoked any trouble as a result of carrying out this alleged activity. The Tribunal does not find the claims in this letter to be credible, but notes it is also in the form of a reference and is self-serving. Moreover there is nothing in this letter to indicate that the applicant had suffered the claimed persecution. In addition, this letter appears to be a photocopy, with all the inherent problems of photocopies as stated above."

24 The letter from Sr. Acacia was seen to be self-serving and not credible. One of the two other letters from the CLO was similarly rejected as self-serving and as not supporting the applicant's claims to have been persecuted. A third letter from the CLO referring to the applicant's claim to have committed anti-Muslim blasphemy was also rejected, partly because it was written in very poor English by contrast with another letter from the same signatory who claimed to be the headmaster of schools in Clarkabad. The Tribunal also pointed to internal inconsistencies between two of the letters purportedly from the CLO. Other letters of a testimonial character were similarly rejected by the Tribunal. In relation to a document hostile to the applicant, the Tribunal said;

"The faxed document with translation from "the Warrior Disciples of Allah, the Warriors of the Holy Jihad of Islam" contains threats against the applicant's family and asks for the applicant to be delivered to the writers. The alleged writers do not give details of how the family is to contact them if the family did comply. If they are alleged to be the fundamentalists, they do not appear to have the claimed information network which would have informed them that the applicant has left the country. There is no evidence of the provenance of this document. It does not have a forwarding fax number. As a fax, it is subject to the same problems as are associated with photocopies and cannot be unequivocally authenticated. In his original statement, the applicant had foreshadowed that young Muslim men would wish to kill him for the religious reasons set out in this fax. The Tribunal finds this document to be selfserving and that it has been provoked by the rejection of the applicant's claims. For all the above reasons, the Tribunal is unable to place any weight on this document."

25 Yet another letter from the former Anglican Archbishop of Melbourne, Dr Rayner, attesting that the applicant was a member in good standing of the Diocese of Lahore of the United Church of Pakistan, was rejected as inconsistent with the applicant's claim to be a member of the Catholic Church in that country and with evidence given before the Tribunal by the associate referred to in [4] and [11] of these reasons who was also mentioned in the Archbishop's letter. As well, the Tribunal noted that, in his oral evidence received by telephone, the Archbishop had been unable to comment on individual situations in Pakistan and confined his remarks to general information about that country derived from his attendance at the Lambeth Conference.

26 Newspaper advertisements describing the applicant and asserting him to be a missing person were discounted by the Tribunal because;

"There is nothing on the face of these advertisements to suggest that they were placed by the police or with police permission, or that they were placed by fundamentalists, who presumably would seek urgent information. Of the 2 in Urdu, one is in different script from the rest of the script on that page and the other has been inserted into another advertisement. All these advertisements were apparently inserted almost a year after the applicant left Pakistan and after the applicant's claims were rejected by the delegate on 10 June 1997. ... ... ... ... ... Advertisements such as these can be placed by anyone, and in the present instance, by anyone in Pakistan who was assisting the applicant in his claims. In addition, this alleged action of fundamentalists is inconsistent with the applicant's claimed fear of their efficient information network, when he claimed that they are in league with the police and the immigration authorities and would be aware if he returned to Pakistan. The Tribunal concludes that if the(y) did possess such a network then equally they would be aware that the applicant had left Pakistan through a principal airport in September 1996, 10 and 11 months prior to the advertisements being placed in the press. For all the above reasons, the Tribunal finds that that these newspaper items are self serving and were provoked by the rejection of the applicant's claim. The Tribunal finds that they do not constitute evidence that the applicant was or is sought either by Muslim fundamentalists or by Pakistani police."

27 The Tribunal went on to note some actual or perceived inconsistencies between the applicant's original application and a statutory declaration made by him about his connections in Pakistan with the witness referred to in [25] above and between the oral evidence before the Tribunal of that witness and of the applicant himself. It also noted that the applicant had failed to comment on those matters when given the opportunity to do so at the end of the oral evidence of that witness. The inconsistencies noted by the Tribunal were said to "go to the applicant's credibility on these matters".

28 The Tribunal in its reasons next rejected the applicant's claim to have been harassed since his detention in 1994. It explained that rejection by saying;

"In addition, the applicant has never claimed either to have seen his alleged persecutors since ..... 1994, or that they have in any way harassed him since that time. Given that the Tribunal finds that it cannot place any weight on the alleged medical certificate regarding treatment of his injuries, and given that it does not accept that he was accused of Blasphemy, the Tribunal also does not accept that the applicant was attacked by young Muslim men on or about ..... 1994 as a result of such accusation. For this reason it also does not accept his later evidence that he was raped by these young men at the time of the alleged attack. The Tribunal concludes that if the applicant has suffered some undiagnosed and untreated injury, it was not incurred for a Convention reason."

29 As well, the Tribunal noted a change between the applicant's evidence to a delegate of the Minister and that given to the Tribunal. Accordingly, it said;

"The Tribunal finds that the applicant varied his evidence in response to the rejection of his claims. It accepts his original evidence that he had no problems when he was living and working in Karachi, where his employment in the hotel and restaurant was public."

30 The Tribunal also regarded other conduct of the applicant in Lahore and his very return to that city as inconsistent with his claim to be a member of a Christian minority who had been accused of blasphemy, had an FIR issued against him and who feared death at the hands of an "extensive network" of Muslim fundamentalists. The existence of a such a network was said to be inconsistent with the alleged persecutors' resorting to newspaper advertisements to find his whereabouts. In referring to the report of Dr Paul Brown, a consultant psychiatrist, the Tribunal noted that it contained some new claims or "embellishments" and concluded that "the applicant appears to have supplied [Dr Brown] with misleading information". Discrepancies between Dr Brown's report and other evidence about the applicant's psychological state at various times were noted and it was concluded that;

"The Tribunal is of the view, for the reasons and on the evidence set out above, that the applicant presented in different ways to different persons. It does not accept that Dr Brown's report is based on all available information, and for that reason is of the view that his report is flawed as based on incomplete information. There is nothing in the report to suggest that there was an assessment of the applicant's credibility. If the applicant has symptoms of post- traumatic stress, the Tribunal is of the view that this is not because of any Convention based reason, and the Tribunal so finds. "

31 The Tribunal then referred to the applicant's horrendous recital of the murder of one of his brothers, the rape and murder of one of his sisters, a novice nun, the murder of another sister and his brother-in-law, severe beatings of his other brother and father (who has since disappeared), the rape and beating of his mother who later died and the kidnap and rape of a third sister, who had since disappeared and is presumed murdered. The Tribunal's reasons for rejecting this recital are explained as follows;

"The Tribunal notes that it is the common practice for applicants both Christian and Muslim to provide supporting evidence by way of death certificates to the Tribunal when claiming the death of any person, or at minimum a written and signed report from the attending physician or a report of an autopsy. The applicant has failed to supply what is normally readily available documentation such as death certificates or any of the above for any member of the family whom he has alleged to have died. The Tribunal finds that as the applicant had not produced any such evidence the cause of any alleged death is not established and further that without the production of any of the above the Tribunal does not accept the allegation of the deaths referred to by the applicant. The applicant has provided the Tribunal with 2 unattested photographs which he alleges are of his sister N..... on her bier and of his brother P..... on his bier. The Tribunal does not accept that these photographs are evidence of the deaths of these 2 family members. The Tribunal notes that the photograph allegedly of P..... surrounded by a large number of women, one of whom is seen to be embracing the corpse, does not equate with the applicant's evidence that it was about a week before the body was recovered and that because of the hot weather the body was unmanageable by the family. The Tribunal put to the applicant, given the above evidence, whether this was a photograph of P..... on his bier, and the applicant responded that it was. The Tribunal refers to the letter from Sr Acacia who has no direct knowledge of the applicant in Pakistan. She said that he had "lost" his sister N...... If the Tribunal were to accept that this indicated that N..... had died, it is significant that the writer did not claim that N..... was raped and murdered. The Tribunal notes that the natural death of a close sibling may result in severe stress and grief.

The Tribunal notes that despite the claimed ongoing murders over a period of time, one by one, of the members of the applicant's Christian family by fundamentalist Muslims, there has been no report of the alleged continuing massacre in news media, Amnesty International, Christian Solidarity, The Voice of the Martyrs, Asia Watch, Human Rights Commission of Pakistan, Human Rights Society of Pakistan, or any Church Newsletters such as that of the Church for which the applicant claimed he worked for some months before leaving for Karachi. There is no evidence that the applicant or his family members have sought the assistance or intervention of any Christian MPs who, under the Pakistan electoral system, represent Christians. If as has been suggested the reason this alleged continuing massacre and attack on the family has never been reported was in order to protect the remaining members of the family, this has allegedly failed. The applicant's brother J..... is apparently the only alleged surviving member of the family (although the ultimate fate of the father is not known). (The Tribunal notes that in the original application, another brother, ..... is also named, but apparently is not in close contact with the rest of the family as no other mention of him in that respect appears to have been made by either the applicant or J..... . Moreover, the applicant is reported to have told Dr Brown that he is the third of 6 siblings, that is, this brother is not mentioned). J....., the applicant's brother who has been in continuing contact with the applicant throughout the relevant period, who has continued to supply the applicant with documentation and information, who has continued to be employed and who has been allegedly able to be contacted by phone at his workplace by a visitor from Australia, is now claimed to be the only active surviving member of the family in Pakistan, and even that is unclear from the documents lodged with the Tribunal on 31 August 1999."

32 The Tribunal, for reasons which it set out, declined to place any weight on either a facsimile message or an anonymously written letter which were each sent to supporters of the applicant in Australia and tended to corroborate aspects of his account of persecution directed at members of his family. Similarly rejected as fanciful was a claim, supported by some documentary evidence, of an attack by fundamentalists on the applicant's brother, who, as a result, was allegedly admitted to hospital in Lahore on 7 July 1999.

33 The Tribunal next noted the applicant's claimed membership of the Catholic Church in Pakistan as to which it said;

"The Tribunal notes that the applicant claims to be a member of the Catholic Church in Pakistan, and that his claimed ambition was to train for the priesthood there. He claimed he disclosed this intention to train for the priesthood to local Muslim youths in ..... 1994. Despite his claims, the only documentation he has lodged from the Catholic Church in Pakistan has been in the form of a small receipt dated 4 June 1996 stating merely that he is a registered member of the Catholic Church. This document is a photocopy with the inherent defects of such copies, as noted above. The Tribunal notes further that the applicant has lodged a number of documents of support from other, mainly very minor, religious groups, but none from the Catholic Church in Pakistan."

34 On various grounds which are then explained in its reasons, the Tribunal regarded as "undermined", the applicant's claim to be "a devout Roman Catholic". From that premise, the Tribunal, whilst accepting that the applicant comes from a Christian family, found that he had exaggerated his religious convictions and "does not have a high profile as a Christian".

35 At the end of its discussion of the applicant's religious affiliations, the Tribunal stated this general conclusion about the applicant's credibility;

"Taking into account all the above evidence and for all the above reasons , the Tribunal finds the applicant is not a witness of truth."

36 The Tribunal then examined a body of "country information", much of it adduced by the applicant, about adverse treatment of Christians in Pakistan. In the same context, the Tribunal quoted extensively from a cable of 14 May 1997 from the Australian Department of Foreign Affairs and Trade ("DFAT") dealing with an episode of widespread damage to Christian property in the town of Shantinagar in February 1997. The Tribunal also reviewed further "country information" on the extent of Christian activity and influence in Pakistan. It noted the insertion in 1986 of s 295C of the Penal Code which prescribed the death penalty for blaspheming the Prophet Mohammed. The Tribunal continued;

"This has been used by litigants to threaten and intimidate Ahmadis, Christians, and even Muslims in the past. According to the Human Rights Commission of Pakistan (HRCP) the introduction of new procedures by the government in 1995, whereby magistrates are required to investigate allegations of blasphemy to see whether they are credible before filing formal charges, have been followed by a significant drop in the number of blasphemy charges. Only one FIR was registered against a Christian, Ayub Masih, under 295C, in 1996. No individual has been executed under this provision, all appeals to the High Court being successful in having lower court decisions set aside. However, religious extremists have killed some persons accused under these laws (US Department of State: Pakistan, Country Reports on Human Rights Practices for 1996, for 1997 and for 1998, the 1998 Report being published on 26 February 1999).

Ayub Masih was convicted of blasphemy under Section 295C on 27 April 1998. "Although the case was pending appeal before the Lahore High Court, Ayub's principal defender, Faisalabad Roman Catholic Bishop and human rights activist, John Joseph, committed suicide outside the court where Ayub had been convicted, to protest the conviction. The High Court appeal still was pending at year's end." A Faisalabad Christian was charged with blasphemy on 31 May 1998 following a dispute with a neighbour despite the instructions to investigate thoroughly any charges before registering a case, and another Christian was charged with the lesser offence of insulting the daughter of the Prophet Mohammed. The Christian-Muslim Peace Committee (which consists of the Ulema belonging to all Muslim sects) at a meeting on 3 June 1998 in Faisalabad decided that in future no case under blasphemy laws would be registered until and unless a joint body of both communities verifies facts of the occurrence. A joint delegation of Christian and Muslim leaders, meeting with the Federal Minister for Religious and Minorities Affairs, Raja Zafarul Haq, on 19 May 1998, had called to their attention Sections 194 and 195 of the Pakistan Penal code, which penalize testimony intended to falsely convict someone of a capital offence with up to life imprisonment (US Department of State Report for 1998, above, CX31079 28 July 1998 DFAT Christian-Muslim Peace Committee, CX30616 16 July 1998 DFAT Christian-Muslim Delegation Met with Minister Zafarul Haq)."

37 In the light of the whole "country information" which it considered, the Tribunal reached this conclusion;

"Evidence from the above independent sources indicates that non-Muslims are a very small minority in Pakistan. It also indicates that although Christians may suffer discrimination, harassment and intimidation and there has been a trend of religious intolerance, it would be difficult to substantiate allegations of widespread institutionalised discrimination shown towards Christians, and they are not, as a rule, persecuted. The government's firm response to the February 1997 anti-Christian riots shows that it did not condone religiously inspired violence against Christians and tried to promote religious tolerance. Christians are free to worship in their own churches and there are a large number of Christian denominations. DFAT indicated that there is no evidence of widespread hatred of Christians among the general population. Problems experienced by Christians have taken place in the context of much broader sectarian violence, spontaneous anarchy and a failure of the civil administration to control mob violence. The former government of Pakistan and religious leaders have expressed support for religious minorities and expressed condemnation of religious violence. There is also evidence that the government took immediate relief action to restore order in the 1997 religious violence and that there is public interest to promote religious tolerance, national unity, peace and brotherhood. The government and religious leaders have taken action to prevent the abuse of the provisions of the blasphemy legislation. Human rights organizations are able to operate freely and human rights lawyers receive government protection as appropriate. The Tribunal is satisfied that this information indicates that the treatment of Christians in Pakistan does not amount to persecution although it does accept that particular circumstances may differ."

38 In conclusion, the Tribunal recorded its finding that the applicant did not possess a high profile as a Christian and found his evidence "not to be credible" as it also found to be his claim that if he were to return to Pakistan he would face persecution because it was alleged that he had said something derogatory against the Prophet Mohammed and the Muslim religion. Before indicating that it had no real doubt about its conclusions and was therefore not required to ask itself "what if I am wrong?", the Tribunal made these findings on the ultimate questions it had to resolve;

"The Tribunal finds that there is not a real chance that the applicant would face persecution on that basis now or in the foreseeable future, if he were to return to Pakistan.

The applicant claimed to fear persecution if he returned to Pakistan on the basis that he is a Christian. On the basis of the above independent country information, the Tribunal finds that there is not a real chance that the applicant would face persecution on that basis now or in the foreseeable future, if he were to return to Pakistan.

He also claimed he would face persecution because he has fled the country. Based on the above country information that there are no restrictions on Christians exiting the country and on the Tribunal's finding that no FIR has been lodged against him, the Tribunal finds that there is not a real chance that the applicant would face persecution on that basis now or in the foreseeable future, if he were to return to Pakistan.

The applicant also claimed that if he returned to Pakistan his employers would be harassed. As the applicant has not claimed that his employers prior to leaving Pakistan were harassed, the Tribunal does not accept this claim."

The grounds of the application to this Court

39 By his further amended application for review of the Tribunal's decision, the applicant invoked five grounds, each of which was said to be available under Pt 8 of the Migration Act 1958 ("the Act"). It is convenient to examine each of those grounds separately and in order.

(i) Required procedures were not observed thereby enlivening s 476(1)(a) of the Act.

40 Counsel for the applicant first pointed in this context to s 425(1) of the Act, which provides;

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

41 Although the applicant was invited to, and did, attend a hearing of the Tribunal, it was contended on his behalf that the invitation gave him no real opportunity to give evidence and present argument about matters which the Tribunal, in its reasons, refused to accept. The matters on which Counsel for the applicant relied were the alleged deaths of the applicant's brother and at least two sisters, as to which the Tribunal said, in the passage quoted at [31] above, that the applicant had failed to provide death certificates or other documentary evidence. It has been contended on behalf of the applicant that the Tribunal should have told him that it regarded the provision of documentary evidence of that kind as crucial to its acceptance of his account. In support of this contention, Counsel referred to Rajamanikkam v Minister for Immigration & Multicultural Affairs [1999] FCA 1411. In that case, Einfeld J said, at [14] - [15];

"The reach of section 425 was considered in Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946; [1999] 164 ALR 339, where at 347-8 in paragraphs 31-41 a Full Court of this Court (Tamberlin, Sackville and Katz JJ) expressed the view, by reference to authority and the facts of the particular case, that the section does not require the Tribunal to present all the evidence it has gleaned to the applicant. Their Honours stated that the "genuine opportunity" to appear spoken of by Justice Lindgren in Sun Zhan Qui v Minister for Immigration & Multicultural Affairs [1997] FCA 324 paragraphs 59-60, and apparently approved by the High Court in Eshetu at paragraphs 49 (Gleeson CJ and McHugh J) 109 (Gummow J) and 178 (Callinan J), meant no more than a real opportunity to appear and give evidence.

As I read the decision, there is nothing in Cho which would suggest that where major rejections of an applicant's credibility in the sense of truthfulness on fundamental claims are not raised with the applicant so as to permit an opportunity to argue and state a position might not in particular circumstances represent a breach of section 425. Although referring to it, their Honours did not dissent from the view of Justice Lindgren in Sun that such a breach may amount to a failure to observe a "procedure" under section 476(1)(a)."

42 Rajamanikkam was reconsidered, on appeal, by a Full Court of this Court (Kiefel, North and Mansfield JJ) sub nom Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023, but their Honours did not find it necessary to examine whether s 425 is applicable to findings by the Tribunal, after an oral hearing, that an applicant has "concocted" the whole or significant parts of his or her evidence.

43 In a related way it was argued that the Tribunal, perhaps unwittingly, had misled the applicant when, as recorded at pp 84-85 of the transcript of the hearing before the Tribunal on 15 October 1998, this exchange occurred after the applicant had noted that "I have not been asked [about] my recent persecution to my family, to my brother and sister";

The Tribunal: "It's all in the faxes."

The Applicant: "Okay."

The Tribunal: "Do you know anything different from what's in the faxes."

The Applicant: "No, I just want to say my word if would you like to listen, and that's what I was going to ----"

The Applicant's Solicitor: "We can do that later."

The Tribunal: "No, it's all in the papers."

The Applicant's Solicitor: "We can do that later, after the last witness."

The Tribunal: "We need to hear the witnesses. But I've got it all in the papers, unless you've got anything different from what's in the papers, I don't really need to ask you about it. I think I explained that at the beginning."

44 When that exchange occurred it was already 5.45 pm and the Tribunal Member was obviously anxious to try to receive the whole of the evidence of the Rev. Houston. In the event, the hearing was adjourned at 5.50 pm to 20 October 1998.

45 Against that background, Counsel for the applicant relied on some observations in Minister for Immigration and Multicultural Affairs v Cho [1999] FCA 946; (1999) 164 ALR 339 at 355-6. He argued that the inference was open, in the light of the Tribunal's statement that "I've got it all in the papers, unless you've got anything different from what's in the papers, I don't really need to ask you about it", that the applicant had been induced to believe that the Tribunal accepted his account of persecution of members of his family. The passage from Cho occurred in the judgment of Sackville J, where his Honour said;

"These cases illustrate that s 425(1)(a) is primarily directed to the requirement that the RRT ensures that the applicant not only knows of his or her entitlement to give evidence (see s 426(1)(a)), but receives adequate notice of the hearing and is not unfairly impeded by the RRT from taking advantage of the statutory entitlement. Ordinarily, the RRT complies with s 425(1)(a) if the applicant receives timely notification of his or her statutory entitlement and of the hearing at which that entitlement may be exercised. If the applicant does not appear, otherwise than through reasons beyond his or her control and of which the RRT is aware, there will generally be no breach of s 425(1)(a). If the applicant does appear in response to the timely notification, and gives evidence before the RRT, there will likewise generally be no breach of s 425(1)(a).

It does not necessarily follow that the effect of s 425(1)(a) is exhausted once the RRT actually commences to hear the applicant's evidence, adequate notice of the hearing having been given. There may be circumstances - although I think that they are likely to be rare - where the RRT conducts the hearing itself in a manner which denies the applicant the genuine opportunity contemplated by s 425(1)(a). To take a hypothetical example, the RRT, having given the applicant timely notification of the statutory entitlement and the hearing, might inform the applicant at the hearing itself that he or she will not be permitted to give evidence on a particular claim within the applicant's own knowledge. If the RRT were to reject the application on the ground that it had not been satisfied of the particular claim, it would not be difficult to conclude that the applicant had been denied the opportunity contemplated by s 425(1)(a). The applicant, although permitted to appear before the RRT and to give evidence, would have been denied the opportunity to appear and give evidence on an issue the RRT itself considered to be critical to the outcome of the case."

46 The Full Court in Cho was concerned with the application of s 425(1)(a) in the form in which it was before the amendments to the Act effected by Act No 113 of 1998. However, another Full Court of this Court in De Silva v Minister for Immigration and Multicultural Affairs [2000] FCA 765, noted that a passage from Cho earlier than that quoted above had been approved in Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 264 and continued;

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

47 That observation was made in the course of upholding a judgment at first instance by Branson J, [1999] FCA 1834, who said, at [14];

"The way in which the Tribunal is to operate is indicated by section 420 of the Act. A failure by the Tribunal to operate in such a way is not a failure to observe a procedure required by the Act to be observed within the meaning of section 476(1)(a) of the Act, Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, (1999) 162 ALR 577. A breach by the Tribunal of the rules of natural justice does not give rise to a ground of complaint before this Court. It would be artificial, in my view, to construe s 425 as indirectly imposing on the Tribunal an obligation to advise an applicant during the course of the hearing of each matter upon which the Tribunal proposed to place weight for the purpose of allowing the applicant to present argument on the topic. I do not so construe it."

48 When the hearing before the Tribunal resumed on 20 October, the Tribunal Member said to the applicant "You're going to tell me about your family." However, the applicant did not respond to that invitation. His Counsel contended on the hearing of the review that his failure to respond was attributable to the belief described above, and engendered by the Tribunal, that it accepted his account of rape and murder inflicted on his siblings. I decline to draw the inference for which Counsel for the applicant has contended. It is to be borne in mind that the applicant was represented before the Tribunal by an experienced solicitor who, when the hearing resumed on 20 October, was reminded of how things had been left on 15 October by the Tribunal Member's saying "Now, I understand [the applicant] is going to talk to me about his family." The applicant's solicitor replied "Yes, he's going to talk about family." After some time had been spent examining and explaining photographs produced by the applicant, the Tribunal Member then said;

"You're going to tell me all about your family. Would you like to have a glass of water before we talk about your family? I know you wanted to tell me something. Would you like to have an adjournment for five or 10 minutes?"

49 The offer of a short adjournment was accepted by the applicant's solicitor. On resuming his evidence, the applicant canvassed a number of matters, including his dealings with the Australian High Commission and difficulties in contacting his family since his arrival in Australia. He acknowledged that some documents which he had produced to the Tribunal had been obtained by his younger brother. The Tribunal Member then said;

"I was thinking of all those letters you've got, whether there was anything you wanted to draw my attention to, that's all. If there isn't anything, it doesn't matter."

50 After he referred to the letter from Sr. Acacia, the applicant's solicitor reminded him "you wanted to talk about your family afterwards." However, despite all those opportunities or invitations, the applicant did not return to the atrocities against his family except to recount what he claimed to have told the psychiatrist, Dr Brown, in Australia. The applicant's solicitor then addressed the Tribunal and no attempt was made to supplement the evidence which had been adduced about the applicant's family.

51 The natural inference from the applicant's failure to take advantage of the opportunities which had been extended to him is that he had nothing further to say and no additional material to put before the Tribunal in relation to the atrocities allegedly perpetrated on his family. It is inconceivable that, had the applicant, represented as he was, any further documentary or other corroborative evidence to supply the deficiencies of proof later remarked by the Tribunal, it would have been withheld. As Gummow and Hayne JJ pointed out in Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 at 51;

"The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out."

52 The present applicant was similarly required to put before the Tribunal whatever evidence or argument he had available to him to persuade it that members of his family had been subjected to persecution as he claimed.

53 Under this first ground of appeal, a second argument was advanced in reliance on s 424A of the Act, which provides;

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

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

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

(c) invite the applicant to comment on it.

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

(3) This section does not apply to information:

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

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

(c) that is non-disclosable information."

54 It was submitted on behalf of the applicant that the Tribunal was required by s 424A to acquaint him with the fact that it was a common practice for Muslim and Christian applicants to furnish a death certificate to establish the death of any person and that the applicant's failure to conform with that practice would be the reason, or part of the reason, for affirming the decision under review. Paragraph (c) of s 424A(1) was said to oblige the Tribunal to invite the applicant to comment on the information about the "common practice".

55 The Tribunal's reference to the "common practice" occurs in the passage from its reasons reproduced at [31] above. It will be apparent from that passage that the Tribunal declined to find, in the absence of documentary evidence of the kind it instanced, that any of the deaths of members of the applicant's family had occurred. In my view, the absence of that documentary evidence was not "information" of the kind contemplated by s 424A(1)(a). I consider that s 424A is directed to ensuring that an applicant is apprised of, and given an opportunity to comment on, any specific information coming to the notice of the Tribunal which will lead, or contribute, to its making a decision adverse to the applicant. As Wilcox J said in Malik v Minister for Immigration and Multicultural Affairs [2000] FCA 562; (2000) 98 FCR 291, at 294, in relation to s 359A, which imposes on the Migration Review Tribunal an obligation in substantially identical terms to that imposed on the Tribunal by s 424A;

".....I think the purpose underlying s359A(1) is to ensure that any information which comes to the Tribunal, otherwise from the applicant and which is potentially prejudicial to the applicant's case, shall be drawn to the attention of the applicant, in order that he or she may have the opportunity of dealing with it. I do not think s359A(1) was intended to require the Tribunal to signal to an applicant its doubts or hesitation about the sufficiency of the case which the applicant, himself or herself, had put before the Tribunal.

The distinction between the two situations is readily understandable. It is an obvious breach of natural justice to take into account information which has been received by a decision maker from a third party, and which is detrimental to the case being made by a person seeking the exercise of a statutory discretion, if the person affected by the decision is left unaware of the information. On the other hand, if the problem, from the applicant's point of view, is simply that the material which he or she has put before the Tribunal is not sufficiently persuasive, it can hardly be said the applicant has been denied natural justice. He or she put such information as was thought useful, but it turned out to be insufficient to achieve the desired result."

56 A further ground for rejecting this contention of the applicant is afforded by the language of s 424A(3) which excludes from the reach of the Tribunal's obligation information that is not specifically about the applicant or another person. The information about the common practice to which the Tribunal referred was about applicants or other persons generally who seek to establish the death of a particular individual, ie "just about a class of person" of which the present applicant was a member.

57 It was next argued, as a particular of this first ground, that the Tribunal's statement of reasons did not set out its findings as to material questions of fact, being whether the applicant had been accused of blasphemy, whether his release from police custody had been procured by payment of a bribe, whether his religious convictions exposed him to a risk of persecution because of their likely public expression, whether the extremist group or groups, the "Warrior Disciples of Allah and Warriors of the Holy Jiahad of Islam" existed, and whether one of the applicant's sisters had been missing since 1998 and, if so, why. A second set of alleged omissions to make findings on material questions of fact was related to issues going to the applicant's mental health, including the likelihood of his committing suicide if he were forced to return to Pakistan.

58 Some support for the view that one or more of the alleged omissions to which I have just referred could constitute reviewable error on the part of the Tribunal, might have been derived from the judgment of a five member Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469. However, since that judgment was published, the High Court has made it clear in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1, that the Tribunal is not obliged by s 430 of the Act to make and set out findings on all matters of fact that are objectively material to the decision it is required to make. As McHugh, Gummow and Hayne JJ observed in their joint judgment in Yusuf at p 17; [68];

"Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word "material" in s 430(1)(c). It was said [(2000) [2000] FCA 845; 98 FCR 469 at 481 [47]- [48]] that "material" in the expression "material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision." (original emphasis)

59 Their Honours acknowledged at [69] that s 430 enables a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. Accordingly, the omission may reveal a misapplication of the law to the facts or jurisdictional error.

60 In the present case, the Tribunal rejected, as recent inventions, the applicant's claims to have spoken blasphemy, to have been charged with that offence early in 1994, and to have had an FIR then or subsequently issued against him. In the same context, the Tribunal concluded that it was "not credible" that an FIR procured by powerful and influential Mullahs would have been circumvented by the police "releasing the applicant even for one night". That reasoning afforded an explanation of why the Tribunal rejected the applicant's claim that his release from police detention had been procured by bribery. In relation to the strength of the applicant's religious convictions and a consequential likelihood that he would expose himself to further persecution by proselytising or public displays of devotion, the Tribunal remarked, in the passage quoted at [23] of these reasons that "the applicant has never claimed he provoked any trouble as a result of carrying out" the distribution of Christian literature to Muslims. The Tribunal also found that the applicant had exaggerated his claim to be a devout Catholic and found that he "does not have a high profile as a Christian." By making those findings the Tribunal is to be taken impliedly to have rejected the claim that the applicant would be at risk of persecution by reason of his religion if he were to return to Pakistan. As the High Court has pointed out in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, the reasons of the Tribunal are "not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed." It is sufficient that the Tribunal has consistently applied the correct test and its reasoning is not to be impugned merely because it has not spelled out the application of that test to each element of an applicant's claim. Accordingly, I consider that the Tribunal in the present case, by implication, rejected the unstated premise of the applicant's claim in relation to religion that his convictions were so strong that he would be impelled irresistibly to give public expression to them thereby attracting persecutory attention from the Pakistani authorities.

61 The issue in relation to the "Warrior Disciples of Allah, the Warriors of the Holy Jiahad of Islam" was not whether that body, or those bodies, existed but whether it or they genuinely posed threats to the applicant of the kind set out in the passage from the Tribunal's reasons reproduced at [24] above. For reasons which it explained in that passage, the Tribunal declined to make a positive finding to that effect, so that the existence or otherwise of the body from which the rejected document purportedly emanated was immaterial.

62 Similarly, the Tribunal accepted that the applicant's sister, who was claimed to be missing, was presumed to be dead because it noted in the second of the paragraphs quoted at [31] above that "The applicant's brother S...... is apparently the only surviving member of the family ......". However, it is clear from the whole of that passage that, because of the absence of any verified report by the news media or a religious or human rights agency, the Tribunal was not prepared to accept any of the deaths said to constitute "the alleged continuing massacre" including that of the missing sister. Whether the massacre occurred was a question of fact for the Tribunal. Although the logic by which it chose to answer that question might not commend itself to all other minds, to suggest a different answer would be an impermissible excursion into merits review.

63 The issues related to the applicant's mental health were only material to the ultimate question of whether he had a well-founded fear of persecution in the event of his return to Pakistan as corroborating his account of the past outrages committed against members of his family and threats made against himself. However, the Tribunal, for reasons which it explained, did not accept the applicant's primary evidence of those matters and was not persuaded by the psychiatric or psychological evidence to alter that conclusion. As indicated in the passage reproduced at [30] above, it declined to accept that Dr Brown's report was based on all available information and, accordingly, considered that the post-traumatic stress which Dr Brown had diagnosed, if it existed, was not attributable to a fear of persecution for a Convention reason.

(ii) The decision was an improper exercise of the power conferred by s 476(1)(d) and (3)(c) of the Act.

64 This ground was made available by what the applicant said was the Tribunal's decision to exclude from its consideration a statement from Amnesty International said to have been furnished to it on 2 December 1999, that is, before 3 December when it published its decision adverse to the applicant. The submissions from Amnesty International contain these paragraphs;

"Amnesty International has documented many reports about the massive human rights violations against religious minorities in Pakistan. Several sections of the Pakistan Penal Code (PPC) which deal with religious offences have over the years been used to harass, intimidate and punish hundreds of people solely for the exercise of their right to freedom of religion. Victims mostly come from the religious minorities of Ahmadis and Christians. In particular, the blasphemy laws are being used to persecute religious minorities and has led to the detention of many members of the Ahmadiyya and Christian community as prisoners of conscience. Since the introduction of the mandatory death penalty for blasphemy, such prisoners of conscience can and have been sentenced to death.

Amnesty has written several reports on the persecution of Christians in Pakistan. Generally Christians in Pakistan are disadvantaged and discriminated against in society. Many are poor and so do not have much political or economic influence. Taken with their minority religious status, this leaves them vulnerable to harassment and in some cases abuse. Christian churches and organisations have been targeted by Muslim fundamentalists. In February 1997 a dozen churches and several schools were burned down and some fifty people were injured."

65 It went on to refer to the inability or unwillingness of the Pakistani government to protect religious minorities, suggesting that "most killings of minority members have not been criminally prosecuted." The submission then referred to what the applicant had reported to Amnesty International about the matters which he had canvassed more extensively before the delegate of the Minister and the Tribunal concerning the accusation of blasphemy and his subsequent treatment up to his flight to Australia in September 1996. The submission concluded with these paragraphs;

"The following are the claims put forth by the applicant regarding the continual persecution that his family faces in Pakistan. He tells us that the authorities continually question his family and his whereabouts. He claims his elder sister has been beaten and raped while living at his parent's house and that another of his younger sisters, who had previously been raped, has been abducted by an extremist group called, "Soldiers of Islam," who has demanded the applicant in return for his sister. He claims his younger brother was also beaten, and now is in hiding and that his parents have been beaten resulting in the loss of an eye for his mother. Two of his siblings are now dead. In 1993, the applicant states that his brother was charged with blasphemy and killed without a trial by local fundamentalists.

In 1995, his younger sister who is a nun, was raped and badly beaten. Her attackers were Muslim fundamentalists who demanded the applicant's whereabouts. She died two days later as a result of the attack.

We have had reports submitted to us by the applicant's psychiatrists stating that the applicant is mentally unwell. He suffers from anxious dissociation, ruminations, survivor's guilt and preoccupations with his family's welfare. The psychiatric reports show a range of symptoms of mental ill health that the applicant has incurred as a result of his experiences in Pakistan.

The DIMA decision did not address the applicant's claims concerning the persecution of his family. Amnesty International is concerned that his psychiatric reports show that he is suffering from survivor's guilt which would seem to lend credibility to his claims of persecution surrounding his family. This strongly suggests that there is a broader pattern of persecution in regards to the applicant rather than sporadic harassment. This is consistent with Amnesty International research regarding the inability or unwillingness of the Pakistani government to protect religious minorities.

Amnesty International research shows that few Muslims are charged after taking blasphemy laws into their own hands and many people accused of blasphemy are either detained or executed through the legal process. Amnesty International is also concerned with the applicant's claims that several members of his family have been killed or abused. Especially in regards to the claims he has made stating that his older brother was murdered for similar charges in 1993 and that his sister was abducted by fundamentalists wanting to know his whereabouts.

While Amnesty International does not take a position that all Christians are automatically at risk of serious human rights abuses in Pakistan there is clear evidence that Pakistani law puts Christians at a disadvantage. Given this, and in light of [the applicant's] personal and medical history, Amnesty International can not dismiss the possibility that [the applicant] may face serious human rights violations and persecution if he were to be forcibly returned to Pakistan."

66 Counsel for the applicant pointed to s 430B of the Act, which provides, so far as is relevant;

"(1) This section applies to any decision on a review by the Tribunal other than the following decisions:

(a) a decision that is given orally;

(b) a decision on the application of a person who is in immigration detention.

(2) On the day, and at the time and place, specified in the notice referred to in section 430A, the decision on the review is to be handed down (on behalf of the Tribunal) by:

(a) the Principal Member; or

(b) a person authorised in writing by the Principal Member to hand down decisions.

An authorisation may set out the circumstances in which a person is authorised to hand down decisions.

(3) The Tribunal's decision may be handed down:

(a) by reading the outcome of the decision; and

(b) whether or not either or both the applicant and the Secretary are present.

(4) The date of the decision is the date on which the decision is handed down."

67 The corollary of the legislature's having created a mechanism for determining the point at which a decision, other than one given orally or in relation to a person in immigration detention, is taken to have been made was said to be that the Tribunal was obliged to continue its review of the delegate's decision until it handed down its own decision. In accordance with the principles discussed in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287, that obligation, it was submitted, extended to the consideration of relevant material coming into its possession from time to time until the decision has been handed down. In Sellamuthu, Wilcox and Madgwick JJ observed, at 292; [18] - [19];

"Firstly, s 414 requires that the RRT must "review" the primary decision. It must in the first place consider, among other things, any "written arguments relating to the issues arising in relation to the decision under review" (ss 423 and 424). It must, if not thereupon favourably inclined towards the applicant, continue the review process with the aid of any additional evidence given by the applicant (s 425(1)(a)) and any other evidence the RRT considers necessary to obtain (s 425(1)(b)). The Tribunal is given far-reaching powers to obtain such evidence under ss 427 and 428 (see also ss 56, 60 and 415). The Minister's (or his/her delegate's) decision under review must itself have been made after having "regard to all of the information in the application" (emphasis added) by the visa applicant (s 54), and after the application of an impressive statutory requirement intended to ensure that an applicant understands and has a chance to deal with the case against him or her (s 57 and especially s 57(1)(b): these go well beyond the requirements of the common law of procedural fairness). In a context like this, the ordinary meaning of "review" would be to carefully re-examine the primary decision, with a view to amending or improving it: see the Shorter Oxford English Dictionary definitions of "review" and "revision". Let it be assumed that, in this context, the word "review" does not require more than this. (As Hill J points out, the RRT actually exists to do again what the primary decision-maker did in order to arrive at the correct or preferable decision; this, as Hill J notes, reinforces our point.)

It follows that all of the substantial claims, and information in support of them, put forward by an applicant must be considered. In the course of doing so, the RRT must also, of course, bear in mind whether it should exercise any of its impressive ancillary powers to supplement the information put before it by either the Department or the applicant. In this case, the RRT did not consider all the available information. This constitutes, in our opinion, an "error of law being an error involving an incorrect interpretation of the applicable law" within the meaning of s 476(1)(e)." (original emphasis)

68 It was then submitted that the Tribunal had misdirected itself when it declined to consider the Amnesty International submission said to have been supplied to it on 2 December 1999. The Tribunal's explanation of that course, as set out in a memorandum dated 12 January 2000 from the Tribunal's Melbourne Deputy Registrar was as follows;

"2. The submission referred to by Amnesty was sent to the RRT by both fax and post. The faxed copy was received by the RRT on 2 December 1999. The copy sent by post was received by the Tribunal on 8 December 1999. The letter sent by the Case Finalisation Team to Amnesty should have identified 2 December 1999 as the date that their submission was received. In view of this clear error, I have reminded the Team of the need to more carefully check all correspondence and to acknowledge/reply to all letters as soon as they are received.

3. In spite of the error in dates in our letter to Amnesty, BOTH copies of the submission were received after the decision in this case was made by the Member. However, the faxed copy was received prior to the HANDING DOWN of the decision. The chronology is as follows:

* 15 November 19999: decision signed by Ms Ford [Tribunal Member]

* 19 November 1999: invitation to handing down sent to Applicant and faxed to Erskine Rodan and Associates [Solicitors for the applicant]

* 2 December 1999: faxed submission from Amnesty received

* 3 December 19999: handing down takes place

* 8 December 1999: posted copy of Amnesty submission received

4. In line with normal RRT practice, the Amnesty submission was not referred to the Member nor considered by her as she had already made her decision some time prior to its receipt.

5. Erskine Rodan and Associates are well aware that the Tribunal considers a decision to have been made when it is signed by the Member and not when the handing down occurs and therefore that we are of the view we have no power to take into account any submissions received after the decision is signed. I specifically drew this to their attention on 18 and 19 October in relation to another case (V98/09531). In the latter letter, I noted that they have the right to argue a contrary position in the Federal court if they do not accept the Tribunal's interpretation. It appears from Amnesty's letter that Erskine Rodan and Associates may not have fully informed them of this distinction between a decision being made and handed down."

69 It is common ground that the Tribunal's decision in the present case was signed by the Tribunal Member, Ms Ford, on 15 November 1999. On 19 November, the Registry of the Tribunal notified the applicant that the decision had been made and invited him to attend the handing down of the decision at 10.15 am on 3 December 1999. It is also undisputed that the decision was handed down without the decision-maker having taken into account the Amnesty International submission.

70 A similar issue has been examined by Merkel J in Inderjit Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 73. In that case, his Honour considered the whole statutory context, including s 430B(4), in which the powers and functions of the Tribunal are described and continued, at [26] - [27];

"The primary function of the RRT is to review the decision of the delegate refusing the applicant a protection visa (s 414(1)). The RRT has wide powers and discretions as to the manner in which it conducts that review. Although the decision on the review is to be made prior to it being handed down, the handing down of the decision is not to occur until after written notice is given concerning the time and place at which the decision is to be handed down. However, there is nothing in the statutory scheme that would prevent the RRT from deferring the handing down of its decision until a later date than that notified to the parties if circumstances arose that made that appropriate. Section 430B, which provides for the handing down of the decision, does not contain any requirement that the decision must be handed down on the notified date. Rather, s 430B(4) provides that the date of the decision is the date on which the decision is actually handed down.

It is fairly clear that, under the statutory scheme, and in particular s 430B(4), although a decision is to be made and, in the usual course, committed to writing prior to it being handed down, the decision is only intended to be treated as final and operative as from the date on which the decision is handed down, that is, as from the date of the decision. Thus, there is nothing in the statutory scheme that would appear to prevent the RRT from reconsidering, recalling or altering any decision it has made prior to the date on which the decision is handed down."

71 His Honour went on to reject, as fundamentally flawed, contentions on behalf of the Minister that the interests of speed and efficiency favour a construction that the Tribunal is functus officio once its decision has been made and before it has been handed down as required by s 430B(4).

72 Reference was made both on the hearing of the present case and before Merkel J in Inderjit Singh to Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533. In that case, a Full Court of this Court, by majority, dismissed an appeal by an applicant who claimed that the Tribunal had wrongly disregarded material sent to it after its decision had been made but before it had been handed down or published. That case was decided before the amendment to the Act of 1 June 1999 which inserted, amongst others, s 430B. Spender J, at 536 [12], was inclined to the view that;

".....had the Member wanted to recall his signed decision, because, for example, he had changed his mind or had realised that he had made a mistake, he would have been able to retrieve the decision at any time prior to a copy of it having been sent to either the Minister or the applicant as then required by s 430(2) of the Migration Act 1958 (Cth) ("the Act")."

73 However, his Honour went on to conclude, at 537 [21];

"In summary, even if the Tribunal was not functus officio at the time of receipt of the last submission on behalf of Mr Semunigus (which I think is probably the position in this case), the rules of natural justice did not oblige the Tribunal to have regard to that submission; even if the rules of natural justice did so require the Tribunal to consider that submission, a breach of that obligation is not a permissible ground upon which Mr Semunigus could seek review of the decision of the Tribunal."

74 Higgins J concluded that, under the legislation with which he was concerned, the Tribunal was functus officio when the reasons for decision had been delivered to, and recorded in, the Registry of the Tribunal. He explained his reasons for that conclusion as follows, at 543 [78];

"The mere writing of reasons pursuant to an opinion the decision-maker expects to be final does not put it beyond the power of a decision-maker to change his or her mind. Nor, in my opinion, would the signing of a document incorporating such an opinion constitute the making of a decision. It is not beyond recall. No person apart from the decision-maker (and, perhaps, his or her personal staff) is aware that an opinion has been expressed. However, once that decision is published, even if not yet to the affected parties, it is made. After that point, it can be established objectively that the decision-maker has made that decision rather than another. Given the procedures adopted by the RRT, it seems to me that once the reasons for decision were delivered to and recorded in the Registry of the RRT, the decision was made. That is not to say that in a different statutory and procedural context, a decision might not be "made" though less formally recorded or notified."

75 Madgwick J would have upheld the appeal in Semunigus on the ground that there was no decision unless it had been pronounced or "such steps ..... taken towards its pronouncement as would make it embarrassing to the RRT that the pronouncement of what has been concluded should not be effectuated."

76 Merkel J in Inderjit Singh at [38] regarded Semunigus as, on balance, supporting the view that, until the decision has been handed down or communicated to the applicant or the Department or Minister, the Tribunal is not functus officio and has power to recall the decision. His Honour then went on to consider whether the Tribunal's failure to have regard to a report from the Victorian Foundation for Survivors of Torture ("the Foundation") had denied the applicant the possibility of a successful outcome. He described the Foundation's report in these terms, at [40] - [41];

"..... The Foundation's report was a psychosocial assessment of the applicant based upon seven counselling sessions, each of which ranged in duration from 60 to 120 minutes. The report states that the counselling was conducted with the assistance of a Punjabi interpreter who was required for approximately 80% of the time and that the counselling was conducted in a manner and at a pace that allowed the applicant to take his time to express himself as best he could. The report, which was prepared by a psychologist engaged by the Foundation, explained how difficult it had been to obtain information from the applicant concerning the torture and persecution which he feared. For example, the report stated that at his first interview the applicant was only able to complete one sentence over the whole interview which lasted for more than one and a half hours. It stated that even that was only possible after the applicant had written a sentence down and shown it to the psychologist. The report states that on other occasions the applicant struggled to get two or three words out.

Although the report focused on the psychosocial impact of torture and persecution on the applicant, an aspect of that process involved the psychologist endeavouring to obtain the applicant's historical account of the torture and persecution that he claimed he had suffered. The report contained the applicant's version of the relevant past events upon which he relied to claim that his fear of political persecution was well founded. It appears that the version contained in the report was more precise and detailed than in any of the other material that the applicant had presented to the RRT when it heard the matter on 21 March 2000."

77 In my view, the preponderance of opinions expressed in Semunigus and Inderjit Singh that the Tribunal is not functus officio until its decision has been handed down or given orally or notified, as contemplated by, for example, ss 430A, 430B and 430D of the Act, accords with principle. It is true that those sections, amongst others, are concerned, not with the machinery for making or arriving at the decision, but with notification of it to the parties, so as to fix the date from which the 28 day time limit stipulated by s 478 for lodging of an application for review of the Tribunal's decision by this Court commences to run. Thus, if a decision is given orally, the Tribunal is obliged by s 430D to give the applicant and the Secretary of the Department a copy of the statement under s 430(1) within 14 days after the decision is made, which I take to mean, given orally. That is confirmed by the concluding sentence of s 430D(1) which provides that "The applicant is taken to be notified of the decision on the day on which the decision is made." The result seems to be that, if a decision is given orally and the Tribunal uses the full fourteen days thereafter to prepare its statement of reasons under s 430(1), the applicant will have only 14 days after receiving those reason to lodge an application for review by this Court. Similarly, it seems that, if the applicant is in immigration detention, it is not contemplated that the making of the decision need be marked by giving it orally or any other act external to the decision-maker. All that is required by s 430D(2) in those circumstances is that the Tribunal should give the applicant and the Secretary a copy of the s 430(1) statement of reasons within 14 days of the making of the decision which, if it remains internal to the decision-maker, can only be evidenced by him or her. Sub-section 430D(2), in conjunction with s 478(1)(b) seems to have the further consequence that, if the provision of the s 430(1) statement is the first notification of the decision which the person in immigration detention receives, he or she will have 28 days from its receipt in which to lodge an application for review by this Court.

78 It is also to be borne in mind that the making of the Tribunal's decision is not coterminous with the giving or publication of a statement of reasons pursuant to s 430(1). As McHugh J pointed out in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham 2000) 74 ALJR 417 [70];

"The opening words of s 430(1) presuppose that the Tribunal has made a decision: "[w]here the Tribunal makes its decision", and the sub-section then goes on to impose requirements to be fulfilled subsequent to that decision being made. This construction of s 430(1) was favoured in the recent decision of the Full Court of the Federal Court in Xu v Minister for Immigration and Multicultural Affairs [ [1999] FCA 1741 at [17]]. The requirements of s 430(1) cannot be said to be "some fact or event a condition upon which the existence of which the jurisdiction of a tribunal ... shall depend." [R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd [1978] HCA 60; (1978) 142 CLR 113 at 125 per Mason J.] The requirements in s 430(1) do not go to the Tribunal's authority to "determine the issues". [Public Service Association (SA) v Federated Clerks' Union [1991] HCA 33; (1991) 173 CLR 132 at 149.] Section 430(1) presupposes that the determination has already been made. It requires the Tribunal to give a written, but not a lengthy, explanation of the decision already made. The ultimate issue which the Tribunal has determined is whether it (as opposed to the Minister) [The Tribunal re-exercises the discretion originally exercised by the Minister (or his delegate). Section 415(1) of the Act provides that "[t]he Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.] has been "satisfied" that the prosecutor was a refugee."

79 However, none of these reflections gainsays the proposition which introduces [77] of these reasons. Until the Tribunal has disclosed to the applicant or the Secretary or has otherwise externally communicated its decision whether or not the applicant is a refugee, it remains open to it to alter or reconsider the decision as it sees fit. Accordingly, the statement in the Tribunal's memorandum of 12 January 2000 that it "considers a decision to have been made when it is signed by the Member and not when the handing down occurs and therefore that we are of the view that we have no power to take into account any submissions received after the decision is signed" discloses an error of law. I note in passing that the Act does not, in terms, require that a decision be "signed" by the Member constituting the Tribunal for the purposes of the relevant review. Nevertheless, there is no reason why a direction requiring such a signature should not be given by the Principal Member pursuant to s 420A. Obviously, however, a direction of that kind could not be complied with in respect of a decision given orally as contemplated by s 430D(1).

80 The conclusion reached in the preceding paragraph entails, I consider, that the decision the subject of the present application for review "involved" an error of law within the meaning of s 476(1)(e) of the Act. However, that does not conclude the matter because, even if a ground of review afforded by s 476(1) is made out, the Court has a discretion under s 481(1) whether or not to grant relief. In this case, the error of law which I have imputed to the Tribunal led it to refuse to consider the Amnesty International submission. That refusal was analogous to a breach of the rules of natural justice. Accordingly, as Merkel J, as a member of a Full Court of this Court in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 observed at [42]'

"In such cases the applicant for relief may be required to establish that the breach denied him or her the possibility of a successful outcome: see Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 147; Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 164-166; Abriel v Australian Guarantee Corporation [2001] FCA 165 at [18] and Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301 at [59]."

81 After a careful examination of the Amnesty International submission against the background of the whole of the material that was considered by the Tribunal, I have reached the clear view that the Tribunal's failure to consider the submission did not deny the applicant the possibility of a successful outcome.

82 The first part of the Amnesty submission referred to the provisions of the Pakistan Penal Code which had been used to victimise members of the Ahmadi and Christian minorities and noted that "some prisoners of conscience" had been sentenced to death for blasphemy. The Tribunal, as constituted to determine the present application for review, was specifically aware of s 295C of the Penal Code but, as appears from the passage quoted at [14] above, found that the applicant had altered his version of events to bring himself within the ambit of that section. In relation to prosecutions under s 295C of the Pakistan Penal Code, the Tribunal noted from Country Reports of the US State Department for 1996, 1997 and 1998 that cases under that section "have been routinely challenged and appealed and that no-one has been executed by the state under these provisions."

83 It also rejected, for reasons which it explained, the applicant's claim to have had an FIR issued against him in respect of "Blasphemy against the Prophet" in contravention of s 295C. Given those findings, it is inconceivable that the Tribunal would have been persuaded by the Amnesty submission to find that the applicant was at risk of persecution in the form of prosecution and punishment by the death penalty for blasphemy.

84 The next part of the Amnesty submission consisted essentially of "country information" about the lack of political or economic influence of Christians in Pakistan and their vulnerability to harassment and abuse by Muslim fundamentalists which, in some instances, have been condoned or not actually prosecuted by the Pakistani government. The Tribunal's review in its reasons of "country information" was more comprehensive than that undertaken in the Amnesty submission. As already noted, the Tribunal quoted extensively from the DFAT cable of 14 May 1997 and other "country information" described in [36] above before reaching the conclusion that the present treatment of Christians in Pakistan does not amount to persecution. I therefore do not think it a real possibility that the Tribunal would have altered that conclusion on the basis of the somewhat tendentious, and clearly less comprehensive, survey of "country information" on which the Amnesty International submission, which it received on 2 December 1999, had been based.

85 Most significantly, the Amnesty submission, although noting that the organisation had documented many reports about "massive human rights violations against religious minorities in Pakistan" did not provide any independent corroboration of even one of the atrocities which the applicant claimed had been perpetrated against members of his family. The absence of precisely that sort of corroboration from Amnesty, amongst others, was expressly noted by the Tribunal in the second of the paragraphs from its reasons quoted at [31] above. It is clear that the author of the submission, writing from Sydney, had been unable to do more than rehearse what the applicant "claims" or "tells us" in relation to the catalogue of outrages against members of his family. The inference is therefore inescapable that, had she considered it, the Tribunal Member would have rejected it as "second hand" or "self-serving" in the same way as she treated other, similar, submissions of support like that from Sr. Acacia.

86 In relation to the applicant's psychiatric condition, the Tribunal noted evidence which had been given by Dr Seifert and the Rev. Houston of the applicant's poor mental health, the latter recounting a threat by the applicant to commit suicide. As well, the Tribunal had before it, and referred to, an eleven page confidential psychological report on the applicant by Karen Chugg, Counsellor / Advocate for the Victorian Foundation for Survivors of Torture Inc. That report was based on ten counselling sessions with the applicant, each of one to two hours duration. It noted that the applicant was receiving psychiatric care from Dr Brown and recorded "a deep sense of guilt related to the persecution to which [the applicant's] family are currently subjected." The same report referred, in two separate places, to an attempt by the applicant in February 1998 to commit suicide and to preparations which he had made for possible similar attempts in the future. The report also detailed, under the heading "Relevant Background", accounts by the applicant of the murder of his brother P....., the actions which led the applicant to be arrested and charged with blasphemy and the procuring of his release by bribery. The same section of the report recorded his claim to have been beaten and raped by five men and the alleged assaults on other members of his family, including the rape and later death of his sister, the nun. It also recited that the applicant had learned from his brother of police raids on the family home, the rape and beating of his mother and assaults on his father and brother. Finally, it noted that, during 1998, the applicant had learned "through three faxes to the Anglican Diocese of Melbourne" of the abduction and rape of the applicant's other sister, whom he believed to have been murdered.

87 As will be apparent from the extracts from its reasons reproduced at [13] and [14] above, the Tribunal found various inconsistencies between the applicant's earlier accounts of his experiences and what he had told Ms Chugg which led it to reject the later version. For reasons essentially the same as indicated in [84] above, I consider that the Tribunal would not have been persuaded by the Amnesty submission, which was far less detailed than that of Ms Chugg and based on much less direct contact (if any) with the applicant, to take a different view of the truth of the applicant's claims as recounted in the Amnesty submission.

88 It is true that the Amnesty submission referred to reports from "the applicant's psychiatrists" and adverted to, amongst other symptoms, "survivor's guilt". Amnesty also concluded in this context that the "psychiatric reports show a range of symptoms of mental ill health the applicant has incurred as a result of his experiences in Pakistan." However, the Tribunal had before it a report dated 3 October 1998 from Dr Brown and the extensive report from Ms Chugg to which I have earlier referred. I infer that these were the reports from "the applicant's psychiatrists" mentioned in the Amnesty submission. The Tribunal examined both of those reports in considerable detail and based its distrust of the applicant's credibility on inconsistencies which it perceived between what he had told Dr Brown and matters recorded by Ms Chugg. Dr Brown had first seen the applicant on 7 July 1998. Among the psychiatric symptoms which he listed in his report were;

# "Anxious dissociation with poor attention and concentration and short term memory loss.

# Ruminations and preoccupations with the safety of his family in Pakistan.

# Fears for his safety in Australia in that he feels he could be a political target."

89 There is therefore no doubt that Dr Brown's report was the source of Amnesty's recital of the applicant's mental disorders and its references to "survivor's guilty" in the extract quoted at [65] of these reasons. Moreover, Dr Brown presented the applicant's condition as more acute by referring to "demoralisation and despair" and "suicidal ideas and impulses", noting specifically the suicide attempt which Ms Chugg had also mentioned. In the light of its sceptical reception of Dr Brown's report, I am unable to entertain the suggestion that the Tribunal would have been persuaded to take a different view of the corroborative effect of the applicant's psychiatric condition had it also had available to it Amnesty's summary of Dr Brown's opinion.

(iii) The decision involved an error of law within s 476(1)(e) of the Act.

90 This ground was predicated, first, on the Tribunal's failure to have regard to the Amnesty International submission forwarded to it on 2 December 1999. As indicated in [79] of these reasons, I have been persuaded that the Tribunal's assertion that it had no power to take that submission into account was an error of law which was involved in the decision under review. However, for the reasons indicated from [82] to [89], I have concluded that the Tribunal's error did not deny the applicant the possibility of a successful outcome. Accordingly, this first limb of the third ground of review, which is essentially a reformulation of the second ground, cannot avail the applicant.

91 A second error of law imputed to the Tribunal by Counsel for the applicant was that the Tribunal had misapplied the definition of "refugee" in the Convention by failing to acknowledge that "persecution for reasons of religion" could be constituted by a curtailment of the right to freedom of religion and of the concomitant, qualified, right to public expression of religious belief. However, I consider that, when its reasons are read with the benevolence enjoined by the High Court in Wu Shan Liang (supra), it is clear that the Tribunal addressed itself to the implications for the applicant if he were to return to Pakistan and practise his religion in the way it might be presumed his convictions would compel him to. This matter has been canvassed at [60] of these reasons and, I consider, was the point of the Tribunal's references to the applicant's past religious activities in Pakistan (see [23] above), his lack of an exclusive commitment to Roman Catholicism (see [33] - [34] above), and the "country information" canvassed in the extracts quoted at [37] and [64] of these reasons. I am therefore unable to find that the Tribunal has been guilty of this error of law.

92 Thirdly, it was contended under this ground, that, having rejected the applicant's "enlarged" or "later" version of his treatment by Muslim youths, the Tribunal should have considered whether the applicant's original version of that matter gave rise to a well-founded fear of persecution if he were to return to Pakistan. However, the Tribunal cannot be said to have disregarded the earlier version. It expressly referred to it in the passage from its reasons quoted at [13] above. Understandably, it concentrated on the later version because that was what was said to give rise to a well-founded fear of persecution. However, some findings were relevant to an assessment of the risk of persecution on either version of the applicant's claims. Without pretending to be exhaustive, those findings including one to the effect that "in ..... 1994 the applicant was able to leave Pakistan without trouble, legally and on his own passport", and the apparent acceptance of the testimonial from Christian Action Troops attesting that the applicant had worked with that organisation since 1993 and had "sometimes faced problems caused by Muslims organisations." Similarly, the Tribunal accepted "that the applicant at one time may have sung in a choir connected with a church as it accepts that he is a Christian." In preferring the evidence of the applicant's associate to that of the applicant himself, the Tribunal concluded that "the version of events on which [the associate] had been informed by the applicant was the first version where the applicant was clear that he was wrongly accused of blasphemy and not the applicant's later version." The Tribunal's acceptance of the applicant's earlier version was made clear in this passage from its reasons;

"The applicant told the delegate that while he was living with W... for 6 months in 1994 (still in Lahore), he did not experience any difficulties or problems, and enjoyed working in the church quite openly in a church hall or property. He also told the delegate that he did not have any problems himself in the 11 months he was working and living in Karachi, and was not threatened. When his mother told him that the Mullahs were keeping an eye on the area, he returned again to Lahore where he lived with relatives. The delegate had found that the applicant had lived and worked in Karachi without difficulties for almost a year, and did not accept that he was sought by Muslims in Karachi. The delegate found that he returned to Lahore for reasons other than this. The applicant changed his evidence on this point to the Tribunal, saying that the fundamentalists traced him to Karachi and came to his aunt's house in Karachi and abused her, asking where he was, so he ran to the station and returned to his home town. The Tribunal finds that the applicant varied his evidence in response to the rejection of his claims. It accepts his original evidence that he had no problems when he was living and working in Karachi, where his employment in the hotel and restaurant was public."

93 The Tribunal's extensive review of "country information" about the circumstances of Christians in Pakistan is also inconsistent with the analysis that it rejected his later, embellished version of alleged persecution without considering whether so much of the more moderate version as it accepted could sustain a well-founded fear of persecution for reasons of religion. Had the Tribunal rejected the later version out of hand without considering what was left in its place, it would have been unnecessary for it to have considered, in the light of the "country information" the effect of the applicant's profile as a Christian. I am therefore led to infer that the Tribunal, in fact, assessed, by reference to such of his past experiences and present circumstances as it accepted, whether there was a real chance of persecution of the applicant if he were to return to Pakistan.

94 The last two errors of law said to have been committed by the Tribunal arose from its refusal to attach any weight to testimonials or references which it characterised as "self-serving" and prepared for the purposes of the review. One such reference was that contained in the letter from Sr. Acacia which the Tribunal dismissed as reciting matters at "second-hand". Reference was made to Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370, where Einfeld J, at 377, said of similar testimonials;

"By itself the fact that the presentation of the letters was designed to assist the appellants' case for refugee status says nothing about their veracity. Even if the letters were procured for that purpose, no definitive conclusion adverse to their truth could be drawn, especially on the ground that they arrived in Australia not long before the Tribunal hearing. If the appellants learned in November 1995 that the tenant and the sister could provide truthful material to support the arrest and detention of the sister in law and were advised that such material would assist their case at the Tribunal, it is obvious that letters to that effect would arrive in Australia not long before the hearing. The contemporaneity of these events, albeit much less precise than the Tribunal appears to have found or assumed, is therefore by itself not in the least suspicious. A positive finding that they were false would in these circumstances be unjustified by the facts found."

95 However, it is clear from the Tribunal's discussion of the testimonials and references in the present case that it did not doubt their veracity for the reason "by itself" that they were procured for the purpose of the review or prepared to assist the applicant's case. Rather, the Tribunal declined to attach weight to them because of internal evidence that they did not address matters of fact which the applicant invited the Tribunal to find, or, insofar as they did address matters of that kind, the writers had no personal knowledge of them but were merely reciting accounts which had been provided by the applicant or his supporters. The letter from Sr. Acacia illustrates the point. It was written from Fitzroy in December 1997 and was in these terms;

"[The applicant] is well known to me. He is a devout Christian and regularly attends Church, and it is because of his dedication to his religion that he has endured gross victimisation and persecution in his own country.

I am a professed Sister of the Missionaries of Charity (that is the order founded by Mother Teresa). I was assigned to Pakistan in 1992 and spent 41/2 years on mission there. It was only by living there that I came to know the incredible persecution that Christians are suffering in Pakistan, which seems to be unheard of or ignored by the rest of the world. Fundamentalist Muslims are on the increase and since the introduction of the law, which demands blasphemy be punishable by death, many individuals have been unjustly treated and even murdered. I could cite many cases to you of killings, rape, beatings, violent threats, vandalism and burning of Churches; Christian villages bulldozed and burnt; discrimination at work and in schools and in the marking of examination papers, etc. The list is already overwhelming.

But [the applicant]'s case is particularly tragic and extreme since he has already lost his sister (she was a nun belong to the Daughters of St. Paul order); his brother was murdered (a victim of Muslim violence); and his mother also was recently so badly beaten by Muslims, that she lost her right eye (see photo). The persecution of [the applicant] began because he made known to his Muslim schoolmates, his intention of becoming a Catholic priest. Many Christians under similar (or much less) pressure have given up their Christianity and converted to Islam because they prefer not to suffer or die. Not so in the case of [the applicant], he obviously prefers to risk death rather than give up his faith, so deep is his conviction.

[The applicant] was well known by our Sisters (Missionaries of Charity) in Lahore. He used to sing in our choir for the youth on Sunday evenings, and when I visited Lahore, the Sisters told me of [the applicant's] story - though I did not meet him personally. I therefore have absolutely no doubt of the veracity of [the applicant's] case.

Moreover in the last few years this young man has endured more violence, terror and tragedy than is humanly possible to endure without losing sanity; becoming embittered or despairing. The fact that [the applicant] has remained steady, is proof of his good character and deep faith. He now seeks sanctuary on Australian soil and I am of the firm opinion that he is truly deserving of this. I hope and humbly request that those holding such authority may do all in their powers to grant [the applicant] refugee status in Australia.

Thanking you for your concern."

96 The Tribunal in its reasons said of that letter;

"Also lodged on 13 October 1998 is a document, a reference for the applicant, dated 21 December 1997 on the letterhead of Missionaries of Charity from Sr. M. Acacia MC and addressed "To Whom it may Concern." The writer states that [the applicant] is a devout Christian and regularly attends church. She says the applicant was persecuted because of his intention of becoming a Catholic priest. The Tribunal finds it is significant that the writer does not mention the blasphemy allegation. She says he "has lost his sister" a nun, and says his brother was murdered by Muslims. She does not mention how he lost his sister, or what this loss was. She does not mention on what evidence she is able to state there was this loss. The Tribunal finds it significant that if this loss is death, the writer has not claimed the sister was murdered or raped. She does not mention on what evidence she bases the claim concerning his brother. She also mentions his mother's loss of "her right eye see photo." The writer does not say she witnessed, or has anything other than secondhand knowledge of, any of these alleged events. At the hearing the applicant stated he had not attended Mass since ..... 1994 and did not attend the church of his relatives in Karachi. Sr Acacia does not state which church the applicant attends regularly. The information in the letter concerning the applicant is second hand as the writer clearly states that when she was in Pakistan for 4 and one half years from 1992, she "did not meet him personally." The Tribunal accepts that the applicant at one time may have sung in a choir connected with a church as it accepts that he is a Christian.

... ... ... ... ...

The Tribunal refers to the letter from Sr Acacia who has no direct knowledge of the applicant in Pakistan. She said that he had "lost" his sister N.... If the Tribunal were to accept that this indicated that N.... had died, it is significant that the writer did not claim that N.... was raped and murdered. The Tribunal notes that the natural death of a close sibling may result in severe stress and grief."

97 Those passages make it clear that the Tribunal was not testing the letter against some actual or assumed rule of evidence. Rather, it was outlining, by reference to internal indications and the Tribunal's own analysis of other evidence, why it did not regard the letter as probative of any fact lacking support from another source independent of the applicant. For these reasons, the last two errors of law imputed to the Tribunal have not been made out.

(iv) There was no evidence or other material to justify the making of the decision within s 476(1)(g) or s 476(4)(a) or (b) of the Act.

98 Section 476(1) of the Act provides;

"(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

... ... ... ... ...

(g) that there was no evidence or other material to justify the making of the decision."

99 Sub-section (4) of s 476 is in these terms;

"The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

100 It was first said on behalf of the applicant that the Tribunal's decision was based on a particular fact, that the applicant had never claimed to have provoked trouble by taking Christian literature to former Christians who had recently converted to Islam, (Musalis). The non-making of that claim, it was said, was a fact which did not exist. The second non-existent fact on which the Tribunal's decision was said to have been based was that the applicant had claimed to adhere exclusively to the Roman Catholic religion. Thirdly, it was said that the Tribunal had based its decision on the fact that the applicant's associate referred to in [4] and [6] above had given clear evidence that the applicant had not lived with him, whereas the evidence of the associate was that he and the applicant had lived together for six months at the house of a relative of the associate. The final "fact" said to be in this category was that the applicant had claimed to the respondent's delegate that an FIR had been prepared against him at the police station when he was detained early in 1994.

101 Section 476(1)(g) and s 476(4) of the Act mirror the language and effect of s 5(1)(h) and s 5(3) of the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act"). As Mason CJ said in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 357;

"The effect of s.5(3) is to limit severely the area of operation of the ground of review in s.5(1)(h). If we put to one side the situation to which par.(b) is directed (proof of the non-existence of a fact critical to the making of the decision), the opening part of par.(a) restricts the "no evidence" ground to decisions in respect of which the decision-maker was required by law to reach that decision only if a particular matter was established. In such a case the ground of review is that there was "no evidence or other material ... from which he could reasonably be satisfied that the matter was established"."

102 The decision must have been based on the presumptively non-existent fact. As Black CJ said of s 5(1)(h) and s 5(3) of the AD(JR) Act in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 220;

In a "no evidence" case in which s.5(1)(h) is relied upon, the ground may be made out if, but only if, the case falls within either s.5(3)(a) or (b). It is not suggested that this case falls within s.5(3)(a) but it is put that the finding that Curragh could have had a later delivery date was a finding of a particular fact, upon the existence of which the decision-maker based his decision, and that such a fact did not exist.

The fact in question was clearly a "particular fact" and, in my view, the decision was "based" upon it. If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact. In Bond's case Mason C.J. said, at 357, that s.5(3)(b) was directed to "proof of the non-existence of a fact critical to the making of the decision" (my emphasis). See also, Luu v Renevier (1989) 91 ALR 39 at 47 where a Full Court of this Court (Davies, Wilcox and Pincus JJ) used the word "critical" to distinguish unsupported findings of fact that go to the validity of a decision from findings relating only to a matter of peripheral importance, that may not affect the validity of a decision.

Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion."

103 The passage from the Tribunal's reasons on which the applicant's first invocation of the "no evidence" ground was based was in these terms;

"The applicant lodged 2 letters from the CLO. A letter dated 17 July 1996 from CLO signed by S.M. Saghir, Chairman, states that the applicant has been working in the CLO distributing `Christian literature among the Muslim Community dwelling in the remote arears (sic) of the Punjab Province of Pakistan,' and that he is hardworking and is wished success in his spiritual work."

The Tribunal's reasons then continued with the passage quoted at [23] above.

104 Counsel for the applicant pointed out that, in the course of his oral evidence to the Tribunal, this exchange occurred;

Ms Ford: "Now, what was this about taking Christian literature to the Muslims."

The Applicant: "It's like going very common in Pakistan, very with Christian, they don't have much faith."

Ms Ford: "What you are telling me is that they were actually Christians you were taking it to."

The Applicant: "No, not the Christian. They converting to Islam now because they have no foundation. They are newly Muslim people, but inside they have feeling for the Christian, and these really need, people need to go and talk to them. I said the Muslim people get angry with me. They know that the people who converted from Muslim to Christian, they called by another name. Not Muslim, not Christian, they call the Musali, and they said, "Why you go to these peoples house because they doubt?" This Christian man go to these peoples house and trying to make them Christian back again, and the people we already occupied make them Muslim and they thinks that I'm a naughty man, I'm doing a naughty thing and I'm trying to make them Christian back again. These people pretend, they say, "We are Christian - we are Muslim," so I used to go also these people and I tell the, "Look, this is all gospel which is true, and that's not the truth what you believing on," and because they accept it and they believe it because of the pressure, and also because they don't have any foundation. They don't have the deep in roots, they don't have Christianity, because they never learned, they never listened, they never taught Christianity. So mainly it was target it was these people. In a village they people know who's the Musali people, where the Musali people live, and they've converted from Christian to Muslim and these people can easily come back to their religion."

105 I was referred in support of this part of the applicant's case to the judgment of a Full Court of this Court (Lee, Goldberg and Kenny JJ) in Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236; (2000) 58 ALD 352. In that case, the Tribunal in its reasons had observed "In his initial submissions, the applicant made no claims of being politically active until he joined HADEP". The Full Court at [17] - [18] referred to a question which the applicant had been required to answer in his initial application for refugee status which was "Why did you leave [Turkey]?" and continued;

"Why did you leave that country?" would seem to require an answer which referred to the events which crystallised the decision to leave or acted as a catalyst in the appellant making that decision. In our view, that question did not warrant an historical analysis or explanation going back over twenty years. Thus, the fact which did not exist was the fact that the appellant was required to set out, in effect, the whole of his case which bore upon the issue of his political persecution. The Tribunal based its decision on that fact when it said:

"It finds that such a significant part of his history would not have been overlooked in setting out the core of his claims ..."

The significance of this approach by the Tribunal can also be found in the manner in which it considered later in its reasons the appellant's claim that he had been detained and tortured. The Tribunal said:

"As with other evidence of significance, the claim to be detained and tortured was not made in initial submissions and is not believed."

We are therefore satisfied that the first ground relied upon as falling within s 476(1)(g) and (4)(b) is made out."

106 By contrast, as the passage from its reasons quoted in [23] above makes clear, the Tribunal, in the present case, advanced the absence of a claim by the applicant to have provoked trouble by distributing Christian literature to Musalis as only one of several grounds for placing no weight on a letter from the CLO which attested that the applicant;

"has been working in our CLO since 1992 as a distributer and distributes the Christian Literature among the Muslims Community which is dwelling in the remote areas of the Punjab Province of Pakistan. Although his work is very hard and serious but he is performing this job with great zeal and zest. He is hardworking and takes keen interest in his work. I wish him success in his spiritual work."

107 Accordingly, the first of the presumptively non-existent facts relied on by the applicant was not a critical link in the chain of reasoning which led the Tribunal to discount his credibility or ultimately to conclude that he did not have a well-founded fear of persecution for a Convention reason. In the terms used by the Chief Justice in Curragh Queensland Mining, on the view most favourable to the applicant, there were other parallel links in the Tribunal's reasoning.

108 The second presumptively non-existent fact was that the applicant had claimed to adhere exclusively to Roman Catholicism. After a careful reading of the whole of its reasons, I am not persuaded that the Tribunal imputed any such claim to the applicant. Some of the passages from its decision in which the Tribunal referred to the applicant's religious adherence are quoted or discussed at [33] and [34] above. However, it is clear from other passages that the Tribunal was well aware that the applicant claimed affiliations in Pakistan with Christian organisations not identified with the Roman Catholic Church and, since his arrival in Australia, had attached himself principally, if not exclusively, to the Anglican Church. Its discussion of his adherence to Roman Catholicism was one of only several strands leading to the intermediate conclusion that the applicant did not have a high profile as a Christian. For these reasons, the second basis for this "no evidence" ground has not been made out.

109 The Tribunal's treatment of the perceived inconsistency between the applicant's evidence and that of his associate, W, occurred in this passage from its decision;

In his original application, the applicant stated that he lived with [the associate] from May 1994 to November 1994. He also returned to this address from August 1996 to September 1996. He stated that his employer from ..... 1994 to .... 1994 was W of the above address and the position was "helper, photographer." However this was inconsistent with his statutory declaration where he stated that [early in] 1994 he went to stay with W who housed him and gave him work for 6 months with the church. He claimed he returned to W 's house in August 1996 and that W and the headmaster of the Diocesan school arranged for him to join a short term religious study course in Australia.

"There were also considerable differences between the oral evidence of the applicant and that of his witness, W as to where the applicant lived in 1994 and 1996, and concerning the employment of the applicant. In his evidence to the Tribunal, the applicant said that he went to W's house for 6 months after his parents asked [an associate] to help him in 1994. He told the delegate he stayed with W in his house but had to move when a person told his brother that they knew where the applicant was and he would not be spared, (although the Tribunal finds it is implausible that would-be persecutors would broadcast their plan in advance). However, the applicant told the Tribunal that he left W's house because W was the person who had a problem with the fundamentalists. He also claimed at the hearing that in addition to his laboring job at the church, he worked with W by taking photographs and helping him to prepare the weekly magazine. W was clear that the applicant did not live with him and did not work for him. W said that he organised accommodation for the applicant with a relative. He arranged a job for the applicant with the Diocese. The applicant did some photographs for him. W did not mention the magazine. W said that when the applicant returned from Karachi he contacted W in his office and he tried to organise shelter for the applicant but it was not possible. He does not know where [the applicant] was living during this period. [The applicant] came to his office; he did not say that he was the one to visit [the applicant]. W said that he had been attacked and illegally detained for 3 weeks at the end of March 1994. He could not work for 5 or 6 months after this, and went underground and was in hiding for 2 years. After the applicant left for Karachi W feared he would be detected by fundamentalists and moved several times. The Tribunal asked the applicant whether he had any comments on this evidence and he said he had none. .....

The Tribunal prefers W's evidence concerning the employment of the applicant, namely he was not employed by W that the applicant did not assist him to prepare the church magazine but did laboring work and took some photographs, that W himself was unable to work for 5 or 6 months [during] 1994, the fact that the applicant did not live with him in 1994, the fact that the applicant came to visit W in his office seeking assistance in 1996, and not that W came to him, that is that the applicant was not in hiding and unable to visit W at that time, and that at the most, if at all, the applicant lived with W for one week in 1996. The Tribunal does not find the applicant's inconsistent version of events to be credible. The Tribunal believes that W, who spoke on the applicant's behalf, was seeking to do the best he could by [the applicant], in telling his story, but it differs from the evidence of the applicant. The Tribunal finds that the applicant's evidence is inconsistent with that of his witness on the matters referred to above. The Tribunal finds that these inconsistencies go to the applicant's lack of credibility on these matters.

The Tribunal concludes that in fact the applicant was merely seeking work and that at the most he was assisted by W in finding employment together with accommodation and left this when his relatives found him employment in Karachi. Based on the applicant's own evidence, the Tribunal finds that the applicant was either unemployed or employed in a menial capacity in the 2 years prior to coming to Australia. The Tribunal does not accept the applicant's version of events for all the above reasons and finds that he has attempted to position himself to be seen to be seeking refuge with W and engaging in activities (producing a Church magazine) which would assist to substantiate his claims for refugee status. Based on the above evidence, the Tribunal concludes that the applicant has not been closely associated with W or [the associate's] activities; he was never employed by or worked with W; and has not lived with W in W's home as claimed by him. The Tribunal notes that when prompted, W could not remember the applicant living with him at any time but suggested that he may have done so for a week before they left for Australia. In addition the Tribunal finds that as he did not work with W, he does not face persecution on that basis."

110 The transcript of the hearing before the Tribunal records this exchange between the Member and the applicant's associate, W;

Ms Ford:	"So he wasn't living with you in 1996? You couldn't organise for him to come and live with you?"
Associate:	"Actually, I don't say that he was not with me, because I was also depending on the relatives, and the relative where he was living, I was also depending on that relative because I myself I was also in trouble."
Ms Ford:	"So were you both living with this relative of yours?"
Associate:	"Yes, that's right."
Ms Ford:	"How long were you both there?"
Associate:	"After six months when he left, I was there for a few more months."
Ms Ford:	"Now, wait a moment, we're now in 1996."
Associate:	"Yes."
Ms Ford:	"Wait a moment, so he was with your relative in 1996 for six months."
Associate:	"1994."
Ms Ford:	"Okay, for six months. Well, where was he in 1996 is what I'm trying to find out."

111 It may be that the applicant's claim to have "lived with" the associate for six months in 1994 should have been understood as a claim to have lived under the associate's protection which would have comprehended living at the house of a relative of the associate which the associate himself acknowledged that he had arranged. In any event, whatever the explanation of the inconsistency as to this matter which the Tribunal perceived between the applicant's various accounts and the evidence of the associate, it is clear from the extracts quoted at [109] above that the perceived inconsistency was only one of several parallel links between the totality of the evidence and the Tribunal's finding that the applicant lacked credibility. Accordingly, I am unable to uphold the applicant's "no evidence" submission based on this third aspect of the decision as a whole.

112 The final matter raised under this ground similarly concerned an allegedly non-existent claim which it was said the Tribunal had found the applicant to have made to the delegate of the Minister. That was that a First Information Report ("FIR") had been prepared against him at the police station where he was detained early in 1994. That part of the Tribunal's reasons which prompted reliance on this limb of the fourth ground of review first recorded in the passage quoted at [13] above that, in his original application for refugee status, the applicant was "clear that no charges had been laid against him and that there was no FIR issued against him." It was then noted that, in the report compiled by Ms Chugg, it was recorded that "at the police station, the police completed a FIR", and, at the hearing before the Tribunal, the applicant had "repeated his changed evidence concerning blasphemy and the FIR." The evidence in relation to the FIR, as recited by the Tribunal in its reasons, was summarised in the passage recited at [10] above and the following passage;

"The Tribunal asked the applicant about the FIR lodged with the Tribunal on 1 October 1998 as he had not earlier informed the department in his original application or at interview with the delegate that an FIR had been lodged against him. The applicant responded that his parents had contacted a lawyer who had obtained a photocopy from the police station and this had been faxed to him. The Tribunal notes that the document in Urdu had been faxed on 2 June 1998. The Tribunal referred to the interview with the delegate in which the applicant had said that there was no FIR. He responded that he thought that the delegate was speaking to him about "a fence" which he understood meant locked, or like a grille, and not "an offence." The Tribunal referred him to other parts of the interview where he was asked whether he was charged with blasphemy or charges in a document or if he had to go to court. The applicant had responded to the delegate that that they had not made any documentation yet. The applicant told the Tribunal that the police had already written out the FIR. The Christian Association people had found out that the FIR had been written and that the police had only said for the sake of money that it had not been written. They could not take him to the police station unless there was something against him. He claimed that in the interview with the delegate he had said that document was already prepared."

113 However, the Tribunal noted in its summary of the evidence that, in his interview by the delegate of the Minister on 2 April 1997, the applicant had responded that, in the course of his detention at the police station early in 1994, the police "had not made any documentation". The translation of what was claimed to be the FIR was in the evidence before the Tribunal. It purported to have been made at a specified police station in the District of Lahore at 9.00 on the day of the applicant's alleged detention. It is true that the statement of the applicant to the Minister's delegate left open the possibility that an FIR had been prepared on that date independently of the preparation of documentation by the police who detained him. However, the whole thrust of the Tribunal's consideration was directed to whether an FIR had been issued against the applicant on that day or at all. The existence of a claim by the applicant that the FIR had been prepared at the police station on the actual day of the applicant's detention was not a fact on which the Tribunal based its decision. In the relevant sense, the basis of the Tribunal's decision was its finding that no FIR at all had been issued against the applicant. For these reasons, this final limb of the "no evidence" ground cannot be sustained.

(iv) The decision was otherwise contrary to law.

114 This ground was said to invoke s 476(1)(c) of the Act which makes a decision of the Tribunal reviewable by this Court on the ground "that the decision was not authorised by this Act or the regulations." From the particulars of it supplied in the further amended application, it seems to revive the complaint discussed in relation to ground (i) above that the Tribunal's statement of reasons in purported compliance with s 430(1) did not set out certain findings of fact which were said to be "critical". It was secondly asserted under this ground that the Tribunal had failed to exercise its jurisdiction when it declined to take into account the Amnesty International submission of 2 December 1999. This final ground was not separately pressed in the oral submissions of Counsel for the applicant and, for the reasons indicated in relation to grounds (i) and (ii) above, must be rejected.

Conclusion.

115 It will be apparent from my discussion of each the grounds of review raised by the further amended application that none of them can sustain an order setting aside the decision of the Tribunal. The application must therefore be dismissed. However, it will also be clear that the applicant has demonstrated, under ground (ii) an error of law by the Tribunal in considering that it had no power to take into account the Amnesty International submission. That issue, on which the applicant succeeded, but which, by reason of discretionary considerations, did not prove decisive, was the subject of extensive written submissions after the oral hearing of the application had concluded. In these circumstances, it is appropriate to make no order as to the costs of the application to this Court.

I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated: 27 August 2001

Counsel for the Applicant:	Mr P Gray
Solicitor for the Applicant:	Erskine Rodan & Associates
Counsel for the Respondent:	Mr W Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 May 2000
Written submissions filed:	4 May 2001 and 25 May 2001
Date of Judgment:	27 August 2001