Reasoning on the appeal
13 There is no merit in the submission that the Tribunal erred in law in refusing to question the appellant's wife as requested by the appellant's solicitor on the issue of the strafing of the hotel. We accept that a failure to give a genuine opportunity to appear before the Tribunal and to give evidence can, in appropriate circumstances, constitute a ground for review having regard to the provisions of s 425(1) and s 476(1)(a) of the Act. The issue of the strafing of the hotel was the subject of evidence by both the appellant and his wife. Both the appellant and his wife gave evidence that the house had been strafed in 1996. What the appellant's solicitor sought to do in the hearing was to invite the Tribunal to ask questions about the detail of the strafing, not the time or date at which it occurred. The primary judge did not err when he found that the Tribunal had accepted that the hotel had been strafed but that what it rejected was that the hotel had been strafed because the appellant housed his relatives there and that the incident occurred in 1996 rather than 1993.
14 However, the grounds which are based upon s 476(1)(g) and (4)(b) are of more substance. We should point out immediately that the argument proceeded on a basis which was not put in the same way to the primary judge. Before the primary judge it was apparently submitted that there was no evidence to justify the Tribunal's conclusion that the appellant fabricated parts of his evidence and that there was no evidence to justify the adverse findings in relation to the appellant's claims concerning his political activities in the late 1970's and his house being sprayed with bullets in 1996. It was submitted that the Tribunal had not given proper consideration to the manner in which the appellant's initial application had been prepared and that the Tribunal had presumed that any inconsistency between the initial application and later statements was to be explained or understood as a fabrication of the later claims. It was said that as a result the Tribunal had acted in accordance with a rule or policy without regard to the merits of the particular case, namely that statements in the initial application would bind the appellant in relation to subsequent claims and that the Tribunal had been guilty of actual bias. It does not appear to have been put to the primary judge that the Tribunal erroneously based its decision on the existence of particular facts, which facts did not exist. Before us the appellant submitted that three such situations had in fact occurred. These were:
(a) The Tribunal said:
"In his initial submissions, the Applicant made no claims of being politically active until he joined HADEP. His later claim that he was active in the late 1970's and was recorded as a person who was required to supply a photograph to the authorities every year for that reason is not accepted by the Tribunal. It finds that such a significant part of his history would not have been overlooked in setting out the core of his claims and concludes that this aspect of the Applicant's claims was fabricated after his initial application was refused, in order to bolster his efforts to be recognised as a refugee."
The appellant submitted that the fact said to exist which did not exist was that in his initial application the appellant made no claims of being politically active until he joined HADEP. It was said that the initial application which he was required to fill out did not require or oblige him to make any such claims. In the relevant part of that application he was asked the question "Why did you leave that country?" which did not require a response referring to his claims of being politically active in the 1970's.
(b) The Tribunal said:
"He says he was nominated for Presidency of his local branch [of HADEP] but that he only agreed to stand for the vice‑presidency. His claims to be an officer‑holder were not made in his initial submissions and, given the enhanced public profile that holding high office in an active and legal political party would most likely bring, it is not credible that such information would have been overlooked in setting out the basis of the claim to be a refugee."
The appellant's initial submissions are found in two forms entitled "Application for a Protection Visa (866)". The form headed "Application for an applicant who wishes to submit their own claims to be a refugee" was signed; the form headed "Persons included in this application and family composition" was not signed. In this latter application from the appellant was asked to list all the documents he was not providing with his application but would be providing later. The form stated:
"Membership card of HADEP
Correspondence/documentation regarding his position as Vice-President of HADEP, Antalya BR
Court papers regarding sentence."
The appellant submitted that this demonstrated that in his initial application he had claimed to be an officer‑holder of HADEP.
(c) The Tribunal did not believe that the appellant's hotel was shot at for harbouring relatives and if it was the event occurred in 1993. The appellant submitted that the fact that the event occurred in 1993 did not exist as a fact.
15 It is important to recognise the clear distinction between establishing that there was no evidence or other material to justify the making of the decision because the person who made the decision based their decision on the existence of a particular fact and that fact did not exist, which is reviewable under s 476(1)(g), and a claim that the Tribunal should not have made the finding of fact which it did which, in general terms, is not reviewable. Section 476(1)(g) and (4) of the Act are in identical terms to s 5(1)(h) and (3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). In Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212, Black CJ (with whom Spender and Gummow JJ agreed) said at 220‑221:
"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 (1998) 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."
In Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 the Full Court (Moore, Mansfield and Emmett JJ) cited this passage from Curragh and said at [34]:
"Thus, the appellant must show that the decision of the Tribunal was based upon the existence of a particular fact, and that that particular fact did not exist if he is to invoke successfully ss 476(1)(g) and 4(b). The particular fact is to be distinguished from the ultimate fact in issue, or a conclusion based upon a series of particular facts, although one of those particular facts may qualify under s 476(4)(b): Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193; Re Feliciano v Minister for Immigration and Ethnic Affairs (1996) 43 ALD 1; Malik v Minister for Immigration and Ethnic Affairs (1997) 47 ALD 27; Adams v Minister for Immigration and Multicultural Affairs (1998) 70 FCR 591."
16 In our view the first two factual matters relied upon by the appellant fall within the category of matters covered by s 476(1)(g) and (4)(b) of the Act. We should point out that these matters were not the subject of submission in the same way as was submitted to Sundberg J. The respondent did not object to this submission in relation to the first matter but objected to the appellant's application for leave to amend his notice of appeal to rely upon the second matter. We granted that leave on the basis that no prejudice would be suffered by the respondent so long as he was given the opportunity to make further submissions on the matter which, in due course, he did.
17 The first matter to address is the Tribunal's statement to which we have referred earlier that "in his initial submissions, the applicant made no claims of being politically active until he joined HADEP". This statement proceeds on the basis that the appellant should have made such a claim in his initial submission or initial application for refugee status. When one looks at that initial submission or application, which is the initial application for a protection visa, one finds that the only question which is asked in the application, which is relevant to this issue, is "Why did you leave that country?" The reference to that country is a reference to the country to which the appellant does wish to go back, namely Turkey and Cyprus. The appellant's answer to that question explained why he left Turkey. He referred to events which had occurred since 1992. A response to the question "Why did you leave that country?" would seem to require an answer which referred to the events which crystallised the decision to leave or acted as a catalyst in the appellant making that decision. In our view, that question did not warrant an historical analysis or explanation going back over twenty years. Thus, the fact which did not exist was the fact that the appellant was required to set out, in effect, the whole of his case which bore upon the issue of his political persecution. The Tribunal based its decision on that fact when it said:
"It finds that such a significant part of his history would not have been overlooked in setting out the core of his claims …"
18 The significance of this approach by the Tribunal can also be found in the manner in which it considered later in its reasons the appellant's claim that he had been detained and tortured. The Tribunal said:
"As with other evidence of significance, the claim to be detained and tortured was not made in initial submissions and is not believed."
We are therefore satisfied that the first ground relied upon as falling within s 476(1)(g) and (4)(b) is made out.
19 We reach a similar result in relation to the Tribunal's statement that:
"His claims to be an office‑holder were not made in his initial submissions and, given the enhanced public profile that holding high office in an active and legal political party would most likely bring, it is not credible that such information would have been overlooked in setting out the basis of the claim to be a refugee."
It was not correct for the Tribunal to say that his claims to be an officer‑holder were not made in his initial submissions or that such information was overlooked by him. His initial submissions, which are found in his initial application for a protection visa, not only refer to his membership card of HADEP but also state that he will be providing later "correspondence/documentation regarding his position as Vice‑President of HADEP, Antalya BR.". In a subsequent statutory declaration made for the purposes of the Tribunal hearing, the appellant said that the application for a protection visa was completed by a person from the Kurdish community and that the appellant did not ask that person to write that certain documents would be provided later. Rather the appellant said that he would try and contact the HADEP branch to obtain verification of his membership. Nevertheless, the initial submission or application for a protection visa clearly referred to the appellant's position as Vice‑President of the Antalya branch of HADEP.
20 The Tribunal did not accept that the appellant was a member or an office‑holder in HADEP and it is apparent from the Tribunal's reasoning that that finding or conclusion was critical to its decision not to grant a protection visa to the appellant. It can therefore be seen that the Tribunal based its decision on the existence of the fact that the appellant's claim to be an office‑holder in HADEP was not made in his initial submission. That fact did not exist because the claim to be Vice‑President of the Antalya branch of HADEP had been clearly stated.
21 The respondent submitted that the unsigned form could not be said to contain the appellant's "initial" submissions and that the form contained information in the nature of file management data. It was not clear from the evidence why one application form was signed and one was not signed. Nevertheless it is clear that the appellant's file comprised both forms and were before the Tribunal at the time of the hearing. It is immaterial in our view that the documents promised were never provided and that in his later statutory declaration the appellant said that he had not asked the person who assisted him to complete the form to write that certain documents would be supplied later. What is significant in our view is that there was a clear statement in relation to correspondence or documentation "REGARDING HIS POSITION AS VICE PRESIDENT OF HADEP, ANTALYA BR.".
22 The involvement of the appellant in politics in Turkey was a critical part of his claim and the manner in which the Tribunal dealt with that subject was critical to its decision to affirm the delegate's decision not to grant him a protection visa. This is clear from the Tribunal's statement that:
"In considering the Applicant's claims that he as a political activist and supporter of the Kurdish cause who attracted the adverse attention [of] the authorities, the Tribunal concludes that he has fabricated a story in an attempt to gain recognition as a refugee. While it is plausible that he made some donations to political parties, it does not believe that he was ever active in politics or that he was harmed for that reason. The chances that he may encounter harm for his political opinions if he returns to Turkey are negligible."
We are therefore satisfied that the second ground relied upon as falling within s 476(1)(g) and (4)(b) is made out.
23 We reach a different conclusion in relation to the submission that the Tribunal based its decision on the existence of a particular fact, which did not exist, namely that the strafing incident did not occur or, if it did occur, it occurred in 1993. On this matter there was evidence from which it was open to the Tribunal to find either that the strafing incident did not occur in 1996 and if it did happen it occurred in 1993. It was open to the Tribunal to infer from the account given by the appellant that the strafing of the hotel occurred in 1993. It cannot be said that the fact did not exist that the strafing occurred in 1993, nor can it be said that the fact did not exist, namely that the strafing incident did not occur in 1996. This was an issue before the Tribunal in respect of which it was open to it to make the findings either way.
24 We are not satisfied that the primary judge erred in rejecting this submission that the Tribunal had acted in contravention of s 425(1) of the Act when it refused to take evidence from his wife about the bullets fired at the hotel. Careful reading of the transcript before the Tribunal shows that the appellant's wife gave evidence about this matter and said that it occurred in 1996. Further, we agree with his Honour's conclusion that the questions which the solicitor for the appellant wanted the Tribunal to ask were not directed to the reason for the strafing or its date.
25 For the reasons to which we have referred the appeal will be allowed, the orders of Sundberg J on 5 July 1999 set aside and in lieu thereof it will be ordered that the decision of the Tribunal on 25 February 1998 be set aside and the appellant's application for a protection visa be remitted to the Tribunal for determination according to law. As the points on which the appellant has succeeded were not argued in the same way before Sundberg J there should be no order as to the costs before Sundberg J. The respondent should pay the appellant's costs. Having succeeded in the appeal the appellant should have such costs as are appropriate for the purposes of O 80 r9(2) of the Federal Court Rules. We fix those costs in the sum of $750 plus any disbursements incurred.
26 Again, the Court has been assisted by pro bono counsel and it is appropriate that the Court acknowledge the public service rendered to the Court and to litigants in person by members of the profession who agree to act without fee as solicitor or counsel in the preparation of cases and presentation of argument in order that the interests of justice may be served. It is important to recognise that by undertaking pro bono work not only do members of the profession do that work without reward but they also undertake to discharge the usual professional duties owed by practitioners to the persons for whom they appear and to the Court.
I certify that the preceding twenty‑six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee, Goldberg and Kenny JJ.