Al-Miahi, in the matter of an application for Writs of Certiorari, Prohibition and Mandamus and an Injunction against Ruddock [2001] FCA 128 (23 February 2001)

Last Updated: 23 February 2001

FEDERAL COURT OF AUSTRALIA

Al-Miahi, in the matter of an application for Writs of Certiorari, Prohibition and Mandamus and an Injunction against Ruddock [2001] FCA 128

MIGRATION - Migration Act 1958 (Cth) - remittal by High Court of Australia of application for prerogative writs - challenge to decision of the Refugee Review Tribunal - whether there was no evidence or other material to justify the making of the decision - powers of the Court on remittal from the High Court - whether the Court may issue prerogative writ

PRACTICE AND PROCEEDURE - application of O 51A r 5 of the Federal Court Rules where Court exercising jurisdiction under Part 8 of the Migration Act 1958 (Cth) in matter remitted from the High Court under s 44 of the Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth) ss 476(1)(g), 476(4)(b), 481, 485

Judiciary Act 1903 (Cth) ss 39B, 44

Constitution s 75(v)

Federal Court Rules O 51A r 5

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

Vichlenkova v Minister for Immigration & Multicultural Affairs [1999] FCA 1338, considered

Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 962, not followed

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

Indatissa v Minister for Immigration & Multicultural Affairs [2000] FCA 1119, considered

Re Ruddock & Ors; Ex parte Reyes [2000] HCA 66, considered

Thambythurai v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Finkelstein J, 16 September 1997), considered

Cam v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14, considered

Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1, considered

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, cited

Re Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407, cited

IN THE MATTER OF AN APPLICATION FOR WRITS AND CERTIORARI, PROHIBITION AND MANDAMUS AND AN INJUNCTION AGAINST PHILIP RUDDOCK in his capacity as the MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS, DINOO KELLAGHAN in her capacity as a Member of the REFUGEE REVIEW TRIBUNAL, PETER NYGH in his capacity as the Principle Member of the REFUGEE REVIEW TRIBUNAL; ex pare AKEEL RAHMA AL-MIAHI

N1227 of 2000

BRANSON J

23 FEBRUARY 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1227 of 2000

BETWEEN:	AKEEL RAHMA AL-MIAHI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT DINOO KELLAGHAN in her capacity as a Member of the REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PETER NYGH in his capacity as the Principal Member of the REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	23 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal made on 22 March 2000 be set aside.

2. The matter to which the decision relates be referred to the Refugee Review Tribunal for further consideration according to law.

3. The first respondent pay the applicant's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1227 of 2000

BETWEEN:	AKEEL RAHMA AL-MIAHI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT DINOO KELLAGHAN in her capacity as a Member of the REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PETER NYGH in his capacity as the Principal Member of the REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT

JUDGE:	BRANSON J
DATE:	23 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 On 10 July 2000 the applicant ("Mr Al-Miahi") instituted a proceeding in reliance on s 75(v) of the Constitution in the High Court of Australia. Mr Al-Miahi sought, amongst other things, the issue of an order nisi requiring the first and third respondents to show cause why a writ of prohibition should not issue directed to the first respondent prohibiting him from acting upon, or giving effect to, proceeding further upon or enforcing the decision of the second respondent ("the Tribunal") that Mr Al-Miahi is not entitled to the grant of a protection visa (subclass 866). Mr Al-Miahi's amended draft order nisi, filed on 7 September 2000, identified four separate grounds of relief. The first such ground ("ground A") was that the Tribunal based its decision on the existence of particular facts and those facts do not exist (see s 476(1)(g) of the Migration Act 1958 (Cth) ("the Act")). The other grounds ("grounds B, C and D") were grounds not identified in s 476 of the Act.

2 On 11 September 2000 a justice of the High Court, acting pursuant to s 44 of the Judiciary Act, ordered that there be remitted to this Court, New South Wales District Registry, Mr Al-Miahi's application for relief under s 75(v) of the Constitution, excluding from that remitter grounds B, C and D of the amended draft order filed 7 September 2000. The matter (or part of the matter) thus remitted to this Court is a matter relating to a judicially reviewable decision within the meaning of Part 8 of the Act.

3 Before the High Court, counsel for the respondents announced that the second and third respondents submitted to any order save as to costs. It appears that their position remains unchanged. I shall hereafter refer to the first respondent, the Minister for Immigration and Multicultural Affairs, as "the Minister".

4 I have concluded, for the reasons set out below, that the appropriate orders in this case are an order quashing the decision of the Tribunal and an order referring the matter to which the decision relates to the Tribunal for further consideration according to law.

Statutory Ground of Review

5 Section 476(1) of the Act specifies the grounds on which an application may be made for review by the Federal Court of a judicially-reviewable decision. Section 485(3) of the Act, which is discussed further below, provides that the Federal Court has no powers in relation to a matter remitted to it under s 44 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") other than the powers it would have had if the matter had resulted from an application made under Part 8 of the Act. The grounds specified by s 476(1) include:

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

Section 476(4) provides:

"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."

6 Reliance is placed in this case on par 476(4)(b). Paragraph 476(4)(a) has no relevant operation.

Ground A

7 Ground A of the amended draft order nisi reads as follows:

"1. The Second Respondent based her decision on the existence of particular facts, and those facts did not exist.

In particular the following facts were found by the Second Respondent

but did not exist.

1.1 That before travelling to Australia the Prosecutor lived in the town of Al-Amarah in southern Iraq, rather than the town of Ali ash-Sharqi which is about 60 kms from Al-Amarah.

1.2 That the Prosecutor claimed to be from the town of Al-Amarah, rather than Ali ash-Sharqi.

1.3 That the Prosecutor was arrested in Al-Amarah, rather than that he was arrested in Ali ash-Sharqi and driven 60kms to Al-Amarah where he was interrogated and severely beaten.

1.4 That the Prosecutor was interview [sic] on arrival at Sydney airport `for over three hours' and that `it was open to him at that stage to give a full account of the harm he had allegedly experienced or feared', whereas on the face of the Immigration Inspector's Report the Prosecutor was interviewed using a telephone interpreter on his date of arrival, 19 May 1999, from 15:25 to 16:30, and during that 65 minutes the interviewer discussed the case with another officer and informed the Prosecutor of various procedural matters and the state of accommodation in Australian detention centres. Further, the Prosecutor gave evidence which the Second Respondent did not attempt to verify that he was told by the immigration officer not to go into detail about his claims as he would be interviewed again at a later date.

1.5 That the Prosecutor claimed that the name of the Shi'a resistance group with which his late brother Hekmat was associated was called `Hezbollah', rather than the `party of Mohammed Baker Al-Hakim', and so the Prosecutor could not be believed because he could not accurately name the Shi'a resistance in Iraq. However, the Prosecutor did not claim that the name of that Shi'a resistance group was `Hezbollah', but specifically named the resistance group with which he was accused of having an association through his brother Hekmat. He also used the term `Hezbollah' in its generic Arabic use, that is, as a description of a political philosophy akin to terms like `fundamentalist' or `radical'."

Reasons of the Tribunal

8 The Tribunal noted that Mr Al-Miahi had arrived in Australia on 19 May 1999 apparently in transit to New Zealand. While at Sydney airport he requested refugee status in Australia. He had no passport, Australian visa, ticket or reliable identity documents.

9 The written reasons of the Tribunal record:

"In an approximately three-hour-long interview with a departmental officer at the Sydney airport regarding his claims for protection, the applicant said that he and his family lived in Amara (or Al-Amarah) in southern Iraq. He had been a mathematics teacher until March 1999.

The Iraqi authorities had accused him of being a member of `Hezbollah' [sic Hizp Allah] because one of his brothers, Hekmat, had been a member (Hekmat had been arrested in February 1999 and killed by the authorities)."

10 The written reasons of the Tribunal further record that during his airport interview, Mr Al-Miahi had said that he had been arrested in March 1999 and held for three weeks. The reasons further record that at this time Mr Al-Miahi had also said that after his release he had refused to join in an operation to avenge his brother's death but that the operation had nonetheless been carried out and the government had thereafter searched for him. His father had been arrested and asked about him. Even after his father had been freed, his father was frequently questioned about Mr Al-Miahi's whereabouts. His mother told him to leave Iraq.

11 The Tribunal's reasons go on to record that in a later written statement, Mr Al-Miahi had described in great detail events to which he had not alluded in his airport interview. Those events were as follows. In August 1998 the local ruling Ba'ath Party office and the police and security centre had been attacked. The day after the attack the authorities had raided Mr Al-Miahi's house, knocked him about and interrogated him about the whereabouts of his brother Hekmat. He was subsequently taken to the local detention centre, placed in a cell and kicked and beaten savagely. He had been kept in solitary confinement, beaten, virtually starved and periodically interrogated. He was released on 11 November 1998 after giving certain undertakings to the authorities.

12 By his written statement, Mr Al-Miahi also claimed that on 24 March 1999 his father had received an official notice asking him to collect the body of Hekmat who had been arrested in Baghdad while trying to attack a Ba'ath Party office. Hekmat had been executed on 25 February 1999. Three days after the receipt of the notice, Mr Al-Miahi had been grabbed from his mathematics class and taken to the Security Department. Here he was tortured and questioned for three weeks before being released after giving undertakings similar to those that he gave before.

13 The written statement also asserted that the day after Mr Al-Miahi's release, four of his late brother's dissident friends had asked him to join them in an operation against the local Ba'ath office and police and security centre. He had refused but the operation had taken place and his terrified parents had urged him to run away and hide. He had done so and learned the next day that his father had been arrested and interrogated about his whereabouts. Thereafter he had travelled to Baghdad and arranged to leave Iraq.

14 Having outlined the claims that had been made by Mr Al-Miahi and the questions put to him by the Tribunal and his responses, the Tribunal in its written reasons for decision records the following conclusion:

"Having considered all the evidence, I am not satisfied that the applicant is who he claims to be, or that the situation he claims to find himself in is genuine. The lack of credibility all through the applicant's evidence makes me unsatisfied that any part of his story has verity. That is, I have considerable doubts that he comes from Iraq or that he had a brother in the Iraqi Shi'a resistance or that he himself had some contact with the resistance or that the authorities jailed and tortured him and are hunting for him. I am of the opinion that he has fabricated evidence in order to bolster an application for a protection visa."

15 Thereafter the reasons for decision of the Tribunal give detailed consideration to Mr Al-Miahi's evidence under eight headings. The first five headings are relevant for present purposes. They are:

1. Hezbollah;

2. Applicant's description of his claimed home city;

3. Missing ID documents;

4. March 1999 detention; and

5. August 1998 detention.

16 Under the heading "Hezbollah", the Tribunal noted that none of the parties making up the opposition grouping in Iraq is called Hezbollah. It stated:

"In my view, referring to the Iraqi Shi'a opposition as Hezbollah raises questions as to whether the applicant has any political knowledge of Iraq or indeed, any contact with that country. I find it implausible that he would make such a mistake if, as he claims: he had a brother who worked for the Shi'a resistance; if the resistance came and asked him to join its operations; and if he had been interrogated exhaustively by the Iraqi authorities over suspected involvement with the resistance. I do not consider that he would persist in giving a major organisation a wrong name if he really did live through all these experiences. This leads me to doubt whether the applicant is a Shi'a at all - or at least a politically aware Shi'a as he portrays himself to be - and whether his country of nationality is Iraq."

17 Under the heading "Applicant's description of his claimed home city" the Tribunal noted:

"The applicant's partial description of his home city, Al-Amarah is at odds with country information. ... Again, this causes me to doubt the applicant's familiarity with Iraq, and this raises questions as to whether he is from Al-Amarah as he claims, or indeed from Iraq at all."

18 Under the heading "March 1999 detention", the Tribunal observed:

"I find it implausible that police would have detained and interrogated the applicant for three weeks in March 1999 over the whereabouts [of] his claimed brother, Hekmat, when according to the applicant's evidence the authorities themselves had informed the family some days before about the rebel's execution in February 1999 and asked them to come and collect his body from police headquarters in Baghdad and bury it. In such a situation as that described by the applicant I do not consider that the police authorities of a major city such as Al-Amarah would have been unaware of the fact that a very active rebel native to the city had mounted a terrorist attack in the capital, been arrested and executed, and that his family in the city had been officially summoned to collect the body and bury it."

19 Under the heading "August 1998 detention" the Tribunal recorded:

"I am not satisfied that there was an earlier and apparently more harsh period of detention in August 1998, also for three weeks, just a few months before the more recent claimed detention of March 1999. If this had happened in the way alleged by the applicant I would have expected him to mention the fact when he was first questioned by a Departmental officer at Sydney airport about why he allegedly feared return to Iraq. ...

It is not the case that when asked for the reasons he was seeking protection in Australia the applicant had only had time to gabble a few words of explanation to his Departmental interlocutor within a few minutes. This is far from being the case: the applicant was questioned for over three hours by the interlocutor and in my opinion had plenty of time, even allowing for the delays caused by using an interpreter, to give a full account of his claims. ...

For all of the reasons explored above I am not satisfied with the credibility of the applicant's claim to have been detained and tortured in August 1998. I am of the firm opinion that the applicant invented this occurrence later in order to boost his claims to a protection visa."

CONSIDERATION

20 The Minister accepts that:

(a) Mr Al-Miahi claimed that he had lived in Al Alsharqui, and that there was no evidence that he had claimed to have lived in Al-Amarah as found by the Tribunal; and

(b) Mr Al-Miahi was interviewed on arrival for 65 minutes, and that there was no evidence that the interview lasted for three hours as found by the Tribunal.

21 That is, the Minister does not dispute that the facts identified in subparagraphs 1.1 to 1.3 of ground A did not exist and that the fact identified in the first sentence of subparagraph 1.4 of ground A did not exist. It is not in dispute that the town of Al Alsharqui is considerably smaller than the city of Al-Amarah.

22 The Minister does dispute that the fact identified in the first sentence of paragraph 1.5 of Ground A did not exist. The Minister relies upon the record of Mr Al-Miahi's airport interview which suggests that during the course of the interview Mr Al-Miahi spoke of his brother being a member of the "Hiz Allah" party and subsequently of his being a member of the "Hizp Allah" party. The Minister also relies upon Mr Al-Miahi's own statement in which he asserted:

"... the security and police who have absolute control and powers to arrest and detain any person they suspect is a supporter of the `Supreme Council of the Islamic Revolution in Iraq' that is known sometimes by others as `Hezbollah' headed by Essayed `Mohammed Baker El-Hakim'."

23 I am not called upon on this remittal to consider whether the conclusion of the Tribunal that Mr Al-Miahi could not accurately name a major Shi'a resistance group was one reasonably open to it. I am called upon to consider whether the Tribunal based its decision on the existence of a particular fact and that fact did not exist. Assuming for present purposes that the Tribunal's decision was based on its conclusion that Mr Al-Miahi could not accurately name a major Shi'a resistance group, and that a necessary step in its process of reasoning leading to that conclusion was its finding of fact that Mr Al-Miahi had referred to his brother being associated with Hezbollah, I am not satisfied that that fact did not exist. The material relied upon by the Minister is sufficient, in my view, to prevent Mr Al-Miahi from demonstrating that the fact did not exist.

24 My further consideration of ground A will for this reason be limited to the facts identified in subparagraphs 1.1 to 1.3 and the first sentence of paragraph 1.4 of ground A. These facts will hereafter be together referred as "the assumed facts". Each of them is, in my view, a "particular fact" within the meaning of par 476(4)(b) of the Act. Each of them did not exist within the meaning of that paragraph.

25 In Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 the Full Court of this Court gave consideration to provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") which are in the same terms as pars 476(1)(g) and 476(4)(b) of the Act. The Chief Justice, with whom Spender and Gummow JJ agreed, at 220-221 said:

"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 (supra) Mason CJ 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.

If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact. Accordingly, I agree with the conclusion of Lee J in Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374 that there is no reason to read s 5(3)(b) in a way that would limit its operation to a predominant reason for the decision under review."

26 It is thus necessary for me to determine whether the decision of the Tribunal was based, in the sense described by the Full Court in Curragh, on any or all of the assumed facts.

27 The Minister contended that the decision of the Tribunal to refuse Mr Al-Miahi a protection visa was not, in any relevant sense, based on the existence of the assumed facts. He argued that none of the assumed facts is a fact upon which the Tribunal's decision was based and that the Tribunal's decision would have been the same if it had not made the factual errors which it did make.

28 The Minister placed reliance on the decision of the Full Court in Vichlenkova v Minister for Immigration & Multicultural Affairs [1999] FCA 1338. In that case Heerey J, with whom Carr and Tamberlin JJ agreed, at [17] said:

"To adopt the language of metaphor, a fact may be critical to the making of a decision if it is a link in a chain of reasoning leading to the making of the decision; see the decision of the Full Court in Curragh Queensland Mining Limited v Daniel (1992) 34 FCA 212. However, in the present case, the more appropriate metaphor is the strand in the net: Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962 at pars 16 to 26."

In Fernando at [26] Heerey J said:

"In the circumstances of the present case the appropriate metaphor is not the chain or the fork in the road, but rather the net. A net does not necessarily fail because one or more of its constituent strands fail. It all depends on how strong the remaining strands are and the size or mass or power of the object which the net is being used to restrain or support. There were a number of other strands, unchallengeable in a review of this nature, which supported the Tribunal's conclusion. The Tribunal, which heard the applicant in person and engaged in dialogue with him, simply did not accept him as a truthful person. Moreover, there was unarguable circumstantial evidence, and in particular his staying in Sri Lanka and waiting for low season airfares, which weighed heavily against the acceptance of his case."

29 As Heerey J recognised when introducing it into this area of jurisprudence, the metaphor of the net brings with it the difficulty of identifying in a particular case the conditions under which the net would have failed. Rarely will the reasons for decision of the Tribunal make this plain. For this reason the net metaphor may often not prove particularly helpful. I have not found it helpful in this case.

30 In Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 at [50] the Full Court rejected the submission made by the Minister -

"that where a challenge is made to a conclusion that a visa applicant should not be believed, that conclusion can be set aside under s 476(1)(g) and (4)(b) only if there is no evidence or other material to support that overall finding."

Rajamanikkam was a case in which the Tribunal had identified a "range of factors, which when considered together ... lead the Tribunal to doubt the applicant's credibility". Because of its doubts as to the visa applicant's credibility, the Tribunal concluded that the visa applicant had concocted his claims. The Full Court at [49] said:

"As the Tribunal has described its process of reasoning, each [of the facts which did not exist] is a matter which played a part in the Tribunal's process of reasoning. That is so, not simply taking those two matters separately, but also because they contributed to its conclusions concerning factor (3). This is not, therefore, a case where those matters are merely parallel links in a chain of reasoning; they are matters without which the Tribunal may well not have reached the conclusion which it did. In our judgment, each of those matters in the particular circumstances of this case were particular facts upon which the Tribunal based its decision to reject the respondent's primary claims as concocted. As those facts were facts which did not exist, the ground of review under s 476(1)(g) and (4)(b) has been made out."

31 In my view, the approach adopted by Weinberg J in Indatissa v Minister for Immigration & Multicultural Affairs [2000] FCA 1119 is both helpful and in accord with the authorities including Curragh and Rajamanikkam. At [48] his Honour said:

"In the context of s 476(4)(b) of the Act, whether the decision-maker based the decision on the existence of a particular fact seems to me to turn upon whether there was a sufficient causal link between the supposed fact, and the decision. However, that causal link need not be understood in any `but for' sense. It need not be the sole, or even the predominant, factor behind the decision. It is sufficient if the link between the supposed fact and the decision is tangible, and the assumed existence of the fact contributed significantly to that ultimate decision. In other words, the issue of causation is one of fact. It is not to be determined as a philosophical or scientific question, but by the application of common sense - March v Stramare (E & MH) Pty Limited [1991] HCA 12; (1991) 171 CLR 506; and Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 387 per Mason CJ."

32 I turn to identify, in the light of the authorities, the basis of the Tribunal's decision. The Tribunal was required to determine whether it was satisfied that Mr Al-Miahi was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. As the paragraph from the Tribunal's reasons for decision which is reproduced in [14] above indicates, the Tribunal was not so satisfied because it was not satisfied:

(a) that the applicant is who he claims to be (ie a national of Iraq); or

(b) that he has experienced in Iraq the adverse treatment of which he gave evidence.

33 The Tribunal indicated in respect of each of the above issues that its lack of satisfaction followed a consideration of "all of the evidence". It referred to a "lack of credibility all through the applicant's evidence". This suggests that the assumed facts played a part in the Tribunal's process of reasoning on each issue (cf Rajamanikkam at [49]) and that there was a sufficient causal link between the assumed facts and the decision (cf Indatissa at [48]). A consideration of the more detailed evaluation of Mr Al-Miahi's evidence undertaken by the Tribunal confirms this suggestion.

34 The written reasons of the Tribunal refer on more than one occasion to the applicant's home city of Al-Amarah. The Tribunal found that Mr Al-Miahi's partial description of his home city was at odds with country information available to the Tribunal. As the Tribunal's written reasons reveal, this apparent discrepancy raised in the Tribunal's mind questions as to whether Mr Al-Miahi in fact came from Iraq. In my view, the Tribunal's assumption that Mr Al-Miahi had claimed to have come from Al-Amarah is to be seen, as a matter of common sense, as having contributed significantly to its ultimate decision to the extent that its ultimate decision rested on its failure to be satisfied that Mr Al-Miahi is who he claims to be.

35 The ultimate decision of the Tribunal was based, however, on two separate considerations, each of which was sufficient to support its ultimate decision. The second consideration was that the Tribunal was not satisfied that Mr Al-Miahi had experienced in Iraq the adverse treatment of which he had given evidence. Unless one or more of the assumed facts was critical to this consideration also, the Tribunal's decision cannot be shown to be based on the existence of a particular fact that did not exist.

36 For the purpose of assessing Mr Al-Miahi's evidence as to his treatment in Iraq, the Tribunal gave him "the benefit of the doubt" with respect to his claim to be a national of Iraq. However, in determining that Mr Al-Miahi had invented the claimed occurrence of being detained and tortured in August 1998, the Tribunal placed weight on Mr Al-Miahi's failure to mention the occurrence during his airport interview. In doing so the Tribunal acted on the false basis that the airport interview took more than three hours. Had the Tribunal appreciated the true length of the interview it is likely to have accorded significance to the following matters:

(a) the terms of the questions asked during the course of the interview are not recorded;

(b) the interview was conducted with the assistance of a telephone interpreter which is likely to have slowed the pace of the interview;

(c) the interview covered a wide range of topics;

(d) the interview was used not only to obtain information from Mr Al-Miahi but also to convey information to him; and

(e) the interview was interrupted for an undisclosed period to allow the interviewing officer to discuss the case with "A/g SII Curtis".

37 Moreover, in considering Mr Al-Miahi's claim to have been detailed and tortured in March 1999, the Tribunal again made the false assumption that Mr Al-Miahi claimed to have come from Al-Amarah. Mr Al-Miahi gave evidence of having been detained and tortured in Al-Amarah (ie in a city some distance from his home town). However, the Tribunal assessed the probable knowledge of the detaining authorities of Mr Al-Miahi's circumstances in the light of its belief that Mr Al-Miahi and his family lived in Al-Amarah.

38 In my view, the Tribunal's assumptions as to the length of the airport interview and as to Mr Al-Miahi's home town are to be seen, as a matter of common sense, as having contributed significantly to its ultimate decision to the extent that its ultimate decision rested on its failure to be satisfied that Mr Al-Miahi had experienced in Iraq the adverse treatment of which he gave evidence.

39 That is, in my view, the assumed facts were critical to the making of the Tribunal's decision in that there was a tangible link between one or more of the assumed facts and each of the two considerations which led to the Tribunal's decision, and the assumed facts contributed significantly to the Tribunal's decision. That is, as a matter of common sense, there was a sufficient causal link between the Tribunal's belief in the assumed facts and the Tribunal's decision for the decision to be based on the existence of the assumed facts within the meaning of s 476(4)(b) of the Act.

RELIEF

40 O 51A r 5 of the Federal Court Rules provides:

"(1) Subject to subrule (2), when the Court or a Judge hears an application remitted by the High Court for an order nisi for a prerogative writ, the Court or Judge:

(a) will at the same time hear the parties on whether, if the order nisi were made, it should be made absolute; and

(b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute.

(2) In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply."

41 Order 51A r 5 has prima facie application to this case.

42 However, s 485 of the Act relevantly provides:

"(1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions ... other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.

(2) ...

(3) If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part."

43 The intended effect of s 485 is not entirely clear. See the consideration of the section in Thambythurai v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Finkelstein J, 16 September 1997) and Cam v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14 (Mansfield J).

44 It can be seen that subs 485(1) is expressed in terms of the Court's jurisdiction while subs 485(3) is expressed in terms of the Court's powers. As Gleeson CJ, Gaudron and Gummow JJ have recently pointed out in Australian Securities and Investment Commission v Edensor Nominees Pty Ltd [2001] HCA 1 at [64]:

"`Jurisdiction' and `power' are not discrete concepts. The term `inherent jurisdiction' may be used, for example in relation to the granting of stays for abuse of process, to describe what in truth is the power of a court to make orders of a particular description. In Harris v Caladine, Toohey J said:

`The distinction between jurisdiction and power is often blurred, particularly in the context of "inherent jurisdiction". But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and `such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred'." (footnotes and citations omitted)

45 It appears that s 485 of the Act was not itself intended to limit the Court's jurisdiction in respect of a matter remitted to it by the High Court pursuant to s 44 of the Judiciary Act. A matter so remitted is expressly excluded from the limits on the Court's jurisdiction imposed by subs 485(1). The requirement of s 44(1) of the Judiciary Act that the Court should have "jurisdiction with respect to subject-matter and the parties" is, of course, unaffected by the terms of s 485 of the Act. It might have been thought that subs 485(3), which is expressed in terms of the Court's powers on a remittal rather than its jurisdiction, was also not intended to limit the Court's jurisdiction, but rather was intended to limit the types of orders that the Court might make in the exercise of its jurisdiction. That is, that subs 485(3) was intended to limit the powers of the Court, so far as the granting of relief is concerned, to the making of the orders referred to in s 481 of the Act. However, s 485 has not been so understood; it has been understood to limit the jurisdiction of the Court, even on a remittal under s 44 of the Judiciary Act, to the jurisdiction which s 476 allows an applicant to invoke by an application for review made directly to the Federal Court (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (McHugh J)).

46 Nonetheless, whatever else the subsection may do, subs 485(3) does, in my view, by implication give the Court, when hearing a matter remitted to it under s 44 of the Judiciary Act, the power to make the types of orders identified by s 481 of the Act.

47 In the ex-tempore reasons of McHugh J in Re Ruddock & Ors; Ex parte Reyes [2000] HCA 66, his Honour gave consideration to the nature of the relief appropriate be granted where a summons for an order nisi has issued following a decision not to grant a visa to a visa applicant. At [23-27] his Honour said:

"In the first place, there is no ground whatever in a case such as the present for the issue of a writ of prohibition against the Minister. As was conceded, as the law stands at the moment and on the facts of the case, the Minister was under a duty, in accordance with s 198 of the Act, to deport the applicant. No claim for prohibition could possibly be made on the basis of his personal fault or breach of the law or jurisdictional error.

However, if the decision of the Tribunal had been quashed and a further hearing ordered, it would be proper in an appropriate case to injunct the Minister from deporting the applicant while the matter was still before the appropriate Tribunal. But such an order against the Minister would be incidental to the principal relief which would be obtained, namely, the quashing of the Tribunal's decision and the ordering of a further determination of the applicant's claim before the appropriate Tribunal.

The second matter to which I refer is that the writ of certiorari is directed to the second respondent `in her capacity as a member of the Immigration Review Tribunal'. However, it is not the proper practice, and never has been, to make persons constituting tribunals the respondent in applications for prerogative relief. The respondent should be the Tribunal itself, apart from those cases falling within O 55 r 8 of the High Court Rules. In that respect I would refer to Brown v Rezitis [1970] HCA 56; (1970) 127 CLR 157 at 169 and to Kerr v Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721.

The third matter I mention is that relief by way of mandamus was sought against the third respondent in her capacity as the principal member of the Migration Review Tribunal. However, mandamus will not lie except for the breach of some public duty imposed upon a person. There is not the slightest suggestion, nor could there be, that the third respondent is in breach of any duty. Indeed, even if the order of the Tribunal was quashed, no relief could be sought against the principal member of the Migration Review Tribunal. Of course, it may be that at some subsequent time if the principal member failed to appoint a person to carry out the duties of that Tribunal, it would be proper to order mandamus against her. But it is certainly not lawful to issue mandamus against a person such as the principal member of the Migration Review Tribunal in respect of something that has not occurred and where no breach or potential breach of duty on that person's part has been shown.

If jurisdictional grounds had been made out in this particular case, a serious question would still arise as to whether or not writs of certiorari or mandamus should be directed to the Tribunal. In my view, in a case of this nature, if there are grounds, the proper relief that should be sought is a mandamus directed to the Tribunal to re-hear the matter according to law, and certiorari to quash the original decision. In an appropriate case, it may be necessary also to restrain the Minister from deporting the applicant pending the determination of the Tribunal of the re-hearing. But the principal relief would be mandamus and certiorari, not prohibition against the Minister, which is not a relevant remedy."

48 On the assumption, but without deciding, that the Court has the power on the present application to issue a writ of prohibition against the Minister, I do not consider that any justification for the issuing of such a writ has been demonstrated. For completeness I add that, in my view, no justification for the making of any order against the Minister in reliance on s 481(2)(c) has been demonstrated. Nor do I consider that any justification has been shown for the making of any order against the third respondent.

49 The orders that will be made are orders in the nature of certiorari and mandamus. It will be ordered that the decision of the Tribunal be set aside and that the matter to which the decision relates be referred to the Tribunal for further consideration according to law.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated: 23 February 2001

Counsel for the Applicant:	Mr D Knoll
Solicitor for the Applicant:	Mr Michael Jones
Counsel for the Respondent:	Mr M Leeming
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 February 2001
Date of Judgment:	23 February 2001