Baban v Minister for Immigration & Multicultural Affairs

tribunal's findings and reasons 5 The Tribunal accepted that the appellant came from PUK-controlled Suleimaniya and that he was a supporter of the PUK. Otherwise, it rejected most of his claims. It said: "The applicant claims to fear harm from the Iraqi authorities and the KDP. He claims the Iraqi authorities learned of his leading role in the PUK peshmarga and issued a warrant for his arrest. I do not accept these claims. The applicant produced the original of the arrest warrant and his original ID card. He said he brought these documents with him to Australia. He said he left Iraq using a passport obtained by a smuggler but he did not know the identity in the passport. I find it implausible that a fugitive from the KDP and Iraqi security would travel through security checkpoints carrying a passport but not knowing the name in it. I find it implausible that such a fugitive would carry with him an ID card in his real name if it conflicted with the identity in the passport. I find it implausible that such a fugitive would go through security checkpoints carrying an original warrant for his arrest naming him as an enemy of the Iraqi regime. I find it implausible that an Iraqi double agent operating in PUK controlled areas would carry original arrest warrants for PUK members. There is independent evidence that fraudulent versions of such official Iraqi documentation is [sic] readily available. I do not accept the warrant as genuine. I am not satisfied the applicant used a false passport to leave Iraq or that his departure was illegal." 6 The Tribunal proceeded to find explicitly that it did not accept that the appellant was a peshmarga of the PUK: independent evidence indicated that peshmarga have PUK identification cards. The appellant had said that he had had one, but had left it behind. The Tribunal refused to accept that explanation, finding it implausible that he would carry both his civil identification card and an original arrest warrant but not his PUK card. Additionally, for reasons which it gave, the Tribunal did not accept the evidence of one of the witnesses called by the appellant that the appellant was known to him from meetings with the PUK leader. The Tribunal does not, anywhere in its reasons (but particularly in the sections to which we have referred), make any findings about the PUK letter or, indeed, mention it at all. 7 The Tribunal found also that it was not satisfied that the appellant was known to or wanted by the KDP. It gave reasons for that finding which were not attacked either before the primary Judge or on appeal. It found also, after considering independent country information, that the appellant did not have a valid sur place claim to be a refugee on the basis that, as a person who had departed Iraq illegally, he was likely to suffer harm for a Convention reason upon his return. The Tribunal was not satisfied that he had left illegally or that "being a returnee per se is likely to give rise to a well founded fear of harm for a Convention reason". 8 The Tribunal acknowledged "the horrendous record of human rights abuses by the Iraqi regime and … the violence between the PUK and KDP Kurdish political factions". It found, however, that the appellant was not of adverse interest to the Iraqi authorities, the KDP or any other organised group; it was not satisfied that the appellant had a well‑founded fear of persecution for a political or any other Convention related reason. Accordingly, the Tribunal found that the appellant did not satisfy the criterion in s 36(2) of the Migration Act for a protection visa and affirmed the decision not to grant visas to the appellant and his son.

application for judicial review; conclusions of the primary judge 9 The only ground of review pressed before the primary Judge was that procedures required by the Migration Act to be observed in connection with the making of the Tribunal's decision were not observed (Migration Act, s 476(1)(a)). It was said that the Tribunal had failed to observe procedures which s 430(1)(c) and (d) required it to observe. Section 430 provides: "430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 10 Specifically, it was said that the Tribunal had not referred to the PUK letter and that, in making its findings to the effect that the appellant was not a refugee sur place, the Tribunal did not deal specifically with two passages in two of the reports about conditions in Iraq which the Tribunal had before it. 11 The primary Judge held, relying on Xu v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 621 at 624-631, that the Tribunal's written statement of reasons was not reviewable pursuant to s 476(1)(a). His Honour held also, however, that in any event the submission that the Tribunal had failed to comply with s 430(1) was not made out: it was not necessary for the Tribunal to refer to every piece of evidence inconsistent with its findings.

the appeal 12 By his amended notice of appeal, the appellant claims that the primary Judge erred both in finding that the Tribunal's written statement of reasons is not reviewable pursuant to s 476(1)(a) of the Migration Act and in finding that the Tribunal had not failed to comply with procedures that were required to be observed in connection with the making of its decision: the particular matters relied on are the failure of the Tribunal to mention the PUK letter and the failure to deal specifically with the two items of country information. The appellant claims also that, by failing to have regard to the PUK letter, the Tribunal made an error of law within the meaning of s 476(1)(e) of the Migration Act. 13 Two aspects of the appeal may be dealt with immediately and briefly. One is his Honour's reliance on Xu for the proposition that s 430 does not prescribe procedures of the kind referred to in s 476(1)(a). In Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, the Full Court (Black CJ, Sundberg, Katz and Hely JJ; Kiefel J dissenting) held to the contrary and declined to follow Xu. Counsel for the Minister formally submitted that the decision in Singh was wrong but accepted that we would follow it, as indeed we are bound to do. Accordingly, the broader ground on which the primary Judge based his decision cannot be supported. 14 The "error of law" ground rested on the proposition that the Tribunal's failure to have regard at all to the PUK letter (assuming, for the present, that the Tribunal did fail to have regard to it) amounted to such an error. For that proposition, counsel for the appellant relied on the decision of Moore J in Sivasubramaniam v Minister for Immigration and Multicultural Affairs [2000] FCA 1035 at par 51 and par 52. Sivasubramaniam, however, was concerned with a state of affairs very different from that with which this case is concerned. In any event, as the concluding part of par 52 demonstrates, the passage on which the appellant relies does not support the proposition which he asserts. We can see no ground for holding that, if the Tribunal did not have regard to the PUK letter, it made an error of law reviewable on the ground set out in s 476(1)(e).

section 430: the principles 15 The principles are comprehensively stated in the reasons of the majority in Singh at pars 44‑60. In summary, s 430(1)(b) requires the Tribunal to state the actual reasons for its decision so that, for example, a statement of reasons which the Court might consider unsatisfactory is not, of itself, a failure to comply with s 430; there is no specific requirement that the Tribunal give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it has made, subject to the qualification that, if one of the reasons which actually induced the Tribunal to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the actual reasoning process; the requirement, under s 430(1)(c), to set out findings on material questions of fact imposes a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision which the Tribunal is required to make; for that purpose the material facts are not limited to those which the statute requires to be decided but extend to all of the material questions of fact raised by the material and evidence before the Tribunal (Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at par 19). 16 The majority judgment in Singh explains that latter requirement at pars 55 to 57, as follows: "55. The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision. Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it. Conversely an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them. As Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691, in the context of s 43 of the AAT Act: 'Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal's reasons expose the logic of its decision, and contain findings on matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with a requirement to include 'findings on material questions of fact'.' 56. Accordingly if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one. But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with: see Durairajasingham [Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405] at pars [65] and [67]. 57. Thus whilst materiality will not necessarily depend upon how an applicant chooses to present the issues, we do not agree that the only material facts are those on which the Tribunal is legally required to make findings: contrast Xu at pars [49] and [51]. A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists." 17 The passage from the judgment in Durairajasingham, to which their Honours refer, played a significant part in the argument before us. There, McHugh J pointed out that, in some circumstances, the obligation to set out the reasons for a decision of the Tribunal will require the Tribunal to state whether it has rejected or failed to accept particular evidence. We quote the passage in par 22 below.

(a) the country information 18 The appellant relied on a facsimile dated 1 May 1998 from the International Organisation for Migration, Canberra and a report dated 13 May 1999 of the Department of Foreign Affairs and Trade entitled "Iraq: Relocation Options for Returning Nationals who Fear Persecution in their Home Country and Alternative Gateways by which Safe Areas may be Accessed". The facsimile said this: "THE INFORMATION AVAILABLE FROM THE UN HUMAN RIGHTS COMMISSION, HCR AND OTHER HUMANITARIAN AGENCIES, SUGGEST [SIC] THAT THE RETURN OF UNSUCCESSFUL ASYLUM SEEKERS TO BOTH COUNTRIES [SCIL, ALGERIA AND IRAQ] GENERALLY CONSTITUTE [SIC] A REAL THREAT TO THEIR SAFETY AND IT IS NOT ALL RISK‑FREE. IN OTHER WORDS, GENUINE FEARS OF PERSECUTION SURROUND THE RETURN OF SUCH PERSONS TO BOTH COUNTRIES."

The Department's report included the following statement:

"MEMBERS OF THE IRAQI‑KURDISH OPPOSITION IN PATRIOTIC UNION OF KURDISTAN (PUK) AREAS ARE IN DANGER OF ATTACKS FROM THE IRANIAN SECURITY FORCES WHO HAVE INFILTRATED THE AREA. IT IS IMPOSSIBLE FOR THEM TO SETTLE IN THE KURDISH DEMOCRATIC PARTY (KDP) REGION." 19 The submission was that, in failing to make an explicit finding about those two pieces of evidence in the section of its reasons dealing with the appellant's claim to be a refugee sur place, the Tribunal failed to comply with s 430(1)(c). The Tribunal had, however, earlier in its reasons referred to a considerable volume of independent evidence, including both the facsimile and the report. Indeed it quoted the facsimile in full and accurately and fully paraphrased the passage in the report on which the appellant relies. Among the material referred to, however, there was some (including recent material) which supported the conclusion to which the Tribunal came. The Tribunal referred to certain of that material as supporting its conclusion. Consistently with principle and authority, it was not obliged to state explicitly why it rejected, or placed less weight upon, the two items on which the appellant relies.

(b) THE PUK LETTER 20 The appellant correctly points out, as we have mentioned, that the letter is not mentioned in the Tribunal's reasons. We have been provided with a copy of the transcript of the hearing before the Tribunal. There is a brief reference only to the PUK letter, fairly described by counsel for the appellant as a passing reference. It occurred in the course of some submissions made by the appellant's adviser. The adviser said: "Second thing that he is a member of the PUK. I've been approached by the leadership of the party here and they asked me to try to represent him and they wrote him a letter of support asserting that he is a member of the PUK."

The Tribunal Member responded, "Yes, I think I've got that on the file" and the adviser, before proceeding with other matters, said "Yes, sir, you have that."

21 We are, of course, in no position to speculate about what consideration, if any, the Tribunal gave to the PUK letter or, if the Tribunal consciously rejected or gave little weight to the letter, on what grounds it did so. It is perhaps uncontroversial to say that it would have been better had the Tribunal referred to the letter, as it referred to the other documents which the appellant produced. To say that, however, does not answer the question whether the Tribunal, by not referring to the letter, failed to comply with s 430(1). 22 The letter might have been regarded particularly as supporting the appellant's claim to have been a peshmarga and also to have offered some corroborative support to other aspects of the appellant's claims. But the Tribunal made a finding on the question of fact, whether the appellant was a peshmarga, and made findings also about the other questions of fact to which the letter might have been relevant. In each case, the Tribunal referred to evidence which (in its view) supported its finding. Contrary to a submission by counsel for the appellant, it is not sufficient, to establish breach of s 430(1), to show that the Tribunal was not "alert to the existence and contents" of the PUK letter (Singh at par 60). (In fact, the passage in the transcript indicates that the Tribunal was aware of the existence of the PUK letter). After quoting with approval the passage from Addo, approved also in the majority judgment in Singh at par 52, McHugh J said in Durairajasingham, at 416 (par 65): "However, the obligation to set out 'the reasons for the decision' (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line‑by‑line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal."

Whether the appellant was a peshmarga was, as the Tribunal dealt with the matter, plainly a material fact on which a finding was required. There was a good deal of evidence bearing on that question, and the Tribunal referred to much of it. The PUK letter cannot, in that context, be regarded as so crucial to that material question of fact that the Tribunal was required to state whether or not it accepted the PUK letter as reliable. In that regard it is significant that the letter does not disclose the source of, or basis for, its assertions and, although the author stated he was prepared to give evidence, he was not among those called by the applicant to give evidence.

23 In short, we would, in our view, be departing from the principles recently affirmed in Singh if we were to hold that the Tribunal had failed to comply with s 430(1) as alleged.

CONCLUSION 24 For the reasons we have given, the appeal is dismissed. The appellant must pay the Minister's costs of the appeal. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Solicitor for the Respondent: Australian Government Solicitor