"For a court to set aside a negative decision on the basis that a reasonable decision maker ought to have achieved the requisite level of satisfaction on the material that was before a decision maker would be to travel well beyond any of the well established circumstances in which courts can set aside administrative decisions. In effect, it would be to substitute the Court's view of the facts for that of the decision maker, a course traditionally regarded as not open to courts."

The more serious criticism relates to the Tribunal's findings of "the applicant's past record of a discreet and cautious involvement with the MDC" and its conclusion "that on her return to Zimbabwe the applicant's involvement in the MDC will [not] be anything other than discreet and confined." This finding must now be looked at in the context of S395/2002 and in conjunction with the other findings of fact concerning the political situation in Zimbabwe made by the Tribunal. At [CB 328] the Tribunal states:

"The Tribunal notes and accepts the country information cited above particularly point 6.114 of the UK Home Office Report which indicates there is politically motivated violence in Zimbabwe and that MDC activists are targeted by government forces and members of ZANU-PF."

The report is set out between [CB 322] and [326]. The whole of sub-paragraph 6.114, accepted by the Tribunal although not fully set out in its findings and reasons, is in the following form:

"6.114 Opposition political activists, particularly those belonging to the MDC, have been targeted and attacked by Government supporters and war veterans since the parliamentary elections in June 2000. Although the Constitution allows for multiple political parties, Government supporters and security force members have subjected opposition activists to significant intimidation and violence. There were reports in 2001 of a growing number of abductions of MDC activists committed by Government supporters, especially in rural areas where loyalty top ZANU-PF is strongest. In 2002, the MDC claimed that 227 of their activists had been abducted and beaten. [3m]. Some abductees were tortured and others later were found killed. Members of the security forces also participated in attacks on opposition activists and suspected supporters."

The Home Office Report contains numerous other references to politically motivated violence against MDC activists and supporters [CB 333 - 335]. The applicant argues that the evidence did not allow the Tribunal to exclude MDC supporters from persons who were likely to suffer persecution as it appears to have done when it referred only to MDC activists. That is a matter which may have to be looked at but for the present I will confine my attention to a consideration of whether the Tribunal failed the test posited by Gummow and Hayne JJ in S395/2002 at [88]:

"The Tribunal did not ask why the appellants would live "discreetly". It did not ask whether the appellants would live "discreetly" because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention."

"The reasons for the Tribunal show, however, that it did not consider whether the choice of the appellants to live discreetly was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly."

Kirby and McHugh JJ at [43] noted the fallacy of relying upon modified conduct on the part of an applicant as an indicator of whether or not that person would be persecuted in the future. They made it clear that if the modified conduct had resulted from a threat of harm it is that threat itself which constitutes the persecutory conduct.

"To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly."

The decision in S395/2002 has been followed in a number of cases by the Federal Court; VWBA v Minister for Immigration [2005] FCA 71 at [40]; SZACV v Minister for Immigration [2004] FCA 469 at [20]; VFAC v Minister for Immigration [2004] FCA 367; WAKZ v Minister for Immigration [2005] FCA 1065 at [60] and its correctness as a matter of principle was affirmed by the High Court in NABD of 2002 v Minister for Immigration [2005] HCA 29. Although the applicant in that case was not successful its particular facts set it apart from S395/2002 and the instant case. In NABD the court considered the conduct of the applicant outside Iran and whether that would subject him to persecution within the state if he were to return and continue his religious practice in the same way. His method of practice was entirely voluntary. In the instant case the activities of the applicant within Zimbabwe were constrained by her fear of persecution which was well borne out by the fact that she was assaulted even when she took part in activities in a place where she was not particularly well known although she had hailed from there. The transcript bears out her evidence that she had made a deliberate decision to work for the MDC in the Zimbabwean Midlands rather than in Harare:

"T: So did you campaign for the June election?

APP: Now don't forget I was in the media you see. There are other things that you have to do not being recognised because when you do those things and go around sometimes you know you put yourself in too much jeopardy. In the Midlands people had kind of forgotten me because I had changed. I left there when I was young but in Harare ...

T: You were known?

APP: Yes.

T: So you had to be a bit more careful.

APP: That's correct because you don't want to, what shall I say ...

The applicant argues that the Tribunal did not ask her why her involvement with MDC was discreet and that in so doing failed to comply with the requirements of S395/2002. It did not investigate the reason for her fear of persecution to see whether or not the behaviour which it felt avoided any persecution was itself conditioned by that fear. The respondent argues that the extract from the transcript I have quoted indicates that the Tribunal did consider those matters. This seems to me to place the Tribunal between the two prongs of Morton's Fork. If the respondent is right and the Tribunal knew full well that the applicant was only being discreet because she was frightened of being anything else then it has effectively found that her conduct was conditioned by her fear of persecution. The fear of persecution which she articulated was for the convention reason of political opinion. The existence of persecution was accepted by the Tribunal based upon the independent country information that it quoted. The applicant would appear to fall within the definition of those persons to whom Australia owed protection under the convention. If, on the other hand, the Tribunal did not make the enquiry it failed to do that which the High Court has mandated. As Madgwick J said in SZAPC v Minister for Immigration [2005] FCA 995, a case on appeal from a Federal Magistrate by which I am bound, at [44]:

"However, the Tribunal clearly accepted the appellant's claim to have practised her beliefs discreetly ... one such claim being to have held secret meetings to avoid being beaten by Sunnis. Given those findings the appellant's claim can hardly be treated as non existent or virtually so; it was made out on a critical point. In accordance with S395/2002 , and following the approach identified in Yusuf, a consideration of the appellant's probable future conduct and the reason for it was warranted. The absence of an indication that the tribunal turned its mind to the issue is sufficient to demonstrate a jurisdictional error."

"... If it were found that the appellant had in the past acted discreetly, ... for fear of persecution, it might seem very difficult to decide that any genuine fear held by the appellant was not well-founded. At least it would need to be explained how the two propositions could logically co-exist. That failure was a constructive failure to exercise the Tribunal's jurisdiction."

In my view the Tribunal either failed to ask itself the relevant question in relation to the applicant's conduct or did so but failed to explain how the proposition that she acted in a particular way because of her fear of persecution could logically co-exist with the finding that her fear was not well founded. It thereby constructively failed to exercise its jurisdiction.

The respondent argues that the applicant's real position is that the facts give rise to an inarticulated claim of persecution that she cannot express her political opinion as she wishes. The respondent argues that as the applicant did not raise that claim the Tribunal did not fall into error in not considering it. The respondent relies on the dicta of the Full Court in NABE v Minister for Immigration (No 2) [2004] FCAFC 263 at [67] and [68]. At [67] the court says:

"[67] It is however significant that the precise ground of failure to consider an implied claim of want of State protection from PLOTE persecution was not raised in the application for judicial review before Tamberlin J. It was not the subject of any express claim before the Tribunal. It seems to have emerged by way of submission in this second round appellate hearing.

[68] Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, 'a substantial clearly articulated argument relying upon established facts' in the sense in which that term was used in Dranichnikov. A judgment that the tribunal has failed to consider a claim not expressly advance is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal."

In my view this extract from NABE (No 2) gives strength to the applicant's case. The evidence before the Tribunal was that the applicant restricted her political activity and conducted it away from her home in order to avoid persecution. That to me is a clear indication that she was not permitted to express her political opinion in the way that she wished, openly and in Harare or wherever she wished to express it within Zimbabwe. The applicant was unrepresented before the Tribunal. Although she is an educated woman it can be seen from her written material that her English is not perfect and to require her to formulate a claim that arises clearly from the factual circumstances put to and accepted by the Tribunal in a manner redolent of pleadings would be contrary to the spirit of the Refugee Conventions and the legislation.

The applicant argues that the Tribunal fell into jurisdictional error when it created a dichotomy between activists and supporters of the MDC against the clear evidence in the Home Office Reports which the Tribunal accepted. She argues that this is constructive failure to exercise jurisdiction of the type identified by McHugh in NABD at [28]. A careful reading of that paragraph indicates that His Honour is not attacking the finding of fact that "it was reasonable for a homosexual person in Bangladesh to conform to the laws and social expectations of Bangladeshi society and practice their homosexuality discreetly" but making an attack on the legal assumption. In the instant case the dichotomy appears to have been created by misreading of the evidence. This would be an error within jurisdiction and not capable of review. In SHKB v The Minister [2004] FCA 545 Selway J said at [22] that the "jurisdictional requirement to afford a fair hearing" cannot be confused with:

"the clear jurisdiction of the Tribunal to make factual findings, even factual findings which are erroneous: see Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77-68. The Tribunal does not make a jurisdictional error merely because it misunderstands the evidence given by a particular person, including the applicant."

In addition, the prohibition on courts engaging in merits review of a decision of the Tribunal is not altered even where the finding of fact is clearly wrong or affected by illogicality: Wu v Minister for Immigration [2003] FCA 1249 per Hely J at [28]; VJAD v Minister for Immigration [2004] FCA 468 per Kenny J at [28].

The applicant's next claim is that she was denied procedural fairness when she was misled by the Tribunal into believing that the Tribunal accepted the factual matters which had been put to it. The relevant factual matters for the purposes of this claim were that the applicant was in possession of important confidential material from her days as secretary to the Vice President which might be a reason for her to be persecuted now, given that she had changed political sides and joined the MDC. The Tribunal's reaction to this information is contained at [CB 327]:

"However, the Tribunal considers the applicant's evidence in respect to her claims to have knowledge of top secrets through her prior employment to be vague and most unconvincing. In the hearing when asked about these secrets the applicant claimed that she was unable to provide information about these top secrets because she had signed an undertaking not to do so. ... Further the applicant has made no claims whatsoever of experiencing any threats or actual harm in Zimbabwe prior to her arrival in Australia by reason of her prior employment and involvement with ZAPU and knowledge of top secrets."

The applicant raises two issues in relation to these matters. The first is that the Tribunal did not provide the applicant with procedural fairness because it did not explain to the applicant that it might have problems with her refusal to give particulars of the top secret information and that there were ways in which this could be avoided by the Tribunal using its powers to take the information in confidence. Because this opportunity was not given to her or even made known to her the applicant was unable to provide convincing evidence of these matters and thus was at risk of a finding such as the one which was made. Like many jurisdictional errors this one could be categorised in more than one way. It could be a failure to provide procedural fairness but equally it could be a failure by the Tribunal to complete its task. The Tribunal could only complete its task if it had before it all the requisite information. If the applicant is able to provide requisite information only in a way which is known to the Tribunal and is not given that opportunity then the Tribunal has prevented itself from completing its task.

Pursuant to s.378 of the Act, the Tribunal is empowered to restrict publication of certain matters where it is in the public interest to do so. The fact that the Tribunal failed to alert the applicant that this section could allow the applicant to disclose the politically sensitive information without resulting public exposure indicates that the Tribunal did not properly consider a distinct claim put forward by the applicant and reveals a failure of the Tribunal to properly consider all information relevant to the applicant's claim. In Htun v Minister for Immigration [2001] FCA 1802 Allsop J stated at [42]:

"To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked upon. The claim or claims and its or their component integers are considerations made mandatorily relevant for consideration in the sense discussed in Peko Wallsend and Yusuf...

It was not a failure merely to attend to evidence even probative evidence, and by such route commit a factual error; it was a failure to deal with one part of a claim for asylum on the basis of his political opinion."

In M51 of 2002 v Minister for Immigration [2003] FCA 887 Ryan J cited the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at [18] and said:

"Where, as has occurred here, there has been a misapprehension of a question to be asked (as well as a consequent failure to consider relevant material), and where the question concerned is central to the exercise of the Tribunal's power under the Act, that error is clearly jurisdictional. As a result, the purported decision is made without jurisdiction, and, is accordingly, not one made "under the Act" for the purposes of s 474: S157/2002 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at 45-6 [74]-[78]."

In Applicant NAKB of 2002 v Minister for Immigration [2003] FCA 534 the effect of a failure of the Tribunal to exercise the powers granted to it under the Act was succinctly described by Tamberlin J at [23]:

"Difficult as it may sometimes be to differentiate jurisdictional and non-jurisdictional error with exactitude, in a case where there has been a fundamental mistake at the threshold in expressing, and therefore considering, the legal claim propounded by an applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it."

I prefer this classification of the failure of the Tribunal to a failure to provide procedural fairness and would find it commensurate with the decisions cited above that the Tribunal fell into jurisdictional error in this manner.

The second point raised in connection with the treatment of the top secret information, which resulted in the unsatisfactory credibility finding, is that the Tribunal had represented to the applicant that it accepted all of her claims and failed to provide her with procedural fairness by informing her that it did not accept the claim relating to secret information. The circumstances in which the Tribunal is said to have accepted her claim can be extracted from the transcript annexed to the affidavit of G D Edgerton at p36 to P39 and in particular the following exchange between the applicant and the Tribunal.

"APP: I am sure you see I can fit. You really have seen everything that you have to see and I have no reason you know of misinforming you and, I mean if I was a crook, you know, look at my age. I am not a twelve year old girl or fifteen year old person and things like that you know. What do I benefit you know by lying to you?

T: I don't think you have lied to me. I think if I didn't think you were - I would actually you - and I have asked you things - like why you didn't mention the MDC earlier ...

T: Okay well I have asked you everything I need to ask you. So what about if - I'll call the hearing officer in and we will close the hearing and I will explain to you what happens next. Is that alright?"

The respondent argues that I have to look at the whole of the transcript from 36 - 39 to see the context within which in those statements are made. The respondent argues that they are made in the context of a distraught applicant being comforted by the Tribunal member. Whilst there can be no suggestion of a deliberate attempt to mislead the applicant my reading of the transcript is that the Tribunal has accepted the truth of the facts put by the applicant including the existence of top secret information which the Mugabe regime might not wish to have in the hands of an openly avowed opposition supporter. The Tribunal is indicating to the applicant that it will consider whether or not the claims she has made fit within the convention definition of a refugee. The Tribunal does not in any way indicate that it is going to make a credibility finding about that information. The applicant has provided an affidavit which has been kept with the file indicating the type of information that she would have given to the Tribunal if she had thought that her testimony on this matter would be the subject of a credibility finding. She has also sworn to her understanding of the Tribunal's assurances and that because of them she did not raise these matters further. I am satisfied that the applicant was misled by probably unintentional representations of the Tribunal and that objectively it was not unreasonable for her to act on the basis of those representations and not take up the Tribunal's offer to provide it with further written submissions after the close of the hearing on this subject.

19. Does this unfairness, as discussed in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601, ground an argument that the Tribunal breached s.425 of the Migration Act 1958 by not providing an appropriate invitation to the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review? If there is a failure to comply with s.425 it would amount to a failure to comply with an obligation that is "So central to the conduct of the Tribunal process that it necessarily conditions the power to make an adverse decision on review" per French J WAJR v Minister for Immigration [2004] FCA 106 at [58]. Support for the proposition that the Tribunal's action constituted a failure to comply with the obligation imposed by s.425 is found in the decision of Lindgren J in NAQF v Minister for Immigration [2003] FCA 781 at [87]:

"If, at an MRT Tribunal the member were to inform the applicant that it was not necessary for the applicant to give evidence or present arguments on such an issue, which, it transpired, in fact remained alive, and thereby dissuaded the applicant from exercising his or her right to give evidence or to present arguments on that issue, the MRT would have failed to comply with the obligation impliedly imposed on it by S360 and the following sections [s.360 is the MRT version of s.425]."

His Honour then went on to make a finding that such an error would have been excluded in the relevant respect by s.357A(1), the equivalent of s.422B but did not give reasons therefore. However, French J in WAJR v Minister for Immigration [57 - 59] a decision binding upon me, reasons that the scope of s.422B is not wide enough to cover an error such as the one described above. I would follow these decisions and make such a finding.

20. It has been my view that the Tribunal in this case has inadvertently fallen into a series of jurisdictional errors. I do not think it necessary to consider the last matter raised in para [5] of these reasons. Conformably with the approach of the High Court in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at [147] I must look to see whether the court can say that a properly conducted hearing could not possibly have produced a different result. I could not be so sanguine. The Stead principle has recently been affirmed by the High Court in NAAF v Minister for Immigration [2004] HCA 62 at [86] and earlier in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; [2000] 204 CLR 82 at [89]. In all the circumstances I believe it is appropriate to grant review of this decision. I will make a declaration that the decision of the Refugee Review Tribunal Reference NO2/44022 dated 17 October 2003 invalid and of no effect. I will order that the application for review be referred back to the Tribunal differently constituted to be heard and determined according to law. I will order that the respondent pay the applicant's costs which I assess in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(b) of the Federal Magistrates Court Rules. If requested I will issue the necessary prerogative writs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM