(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) 171 CLR 506; and Royall v The Queen (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.