CONSIDERATION
21 Section 430(1) of the Act provides:
"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 decisions; 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."
22 There is Full Court authority binding on me to the effect that a failure by the Tribunal to prepare written reasons in accordance with the requirements of s 430(1) of the Act constitutes a ground of review under s 476(1) of the Act (Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 at 19, Logenthiran v Minister for Immigration and Multicultural Affairs (Wilcox, Lindgren and Merkel JJ unreported, 21 December 1998), Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165, (1999) 84 FCR 274 per Burchett and Lee JJ at para 22, and Moore J at para 11, Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 at paras 33-4). The respondent did not seek to argue to the contrary.
23 The Tribunal made no express finding that it disbelieved Mr Yaqo. However, as is mentioned above, it concluded that it was "not satisfied that the applicant or her husband are of any particular interest to the Iraqi authorities." The Tribunal, as a matter of logic, could not have failed to be satisfied that the applicant's husband is of interest to the Iraqi authorities if it had accepted that he is in prison and has become one of the "disappeareds." It is a necessary deduction from the Tribunal's conclusion that the Tribunal either did not believe that the hearsay evidence contained in Mr Yaqo's statutory declaration was true (ie it thought that Mr Yaqo had been told something that was untrue) or it did not believe that Mr Yaqo had been given the information set out in his statutory declaration (ie it thought that Mr Yaqo had made a false declaration).
24 Did the Tribunal fail to comply with the requirements of s 430(1) of the Act? The applicant contended that the Tribunal was obliged to deal with Mr Yaqo's evidence as it was directly relevant to the issue of whether the applicant's husband was in detention and whether the Iraqi authorities had asked her father questions about her after she left Iraq. The respondent contended that s 430 of the Act does not require the Tribunal to give reason for rejecting evidence inconsistent with findings made. Counsel for the respondent referred to the Full Court decisions in Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 and Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 per Lee and Marshall JJ.
25 As Hely J pointed out in Direse v Minister for Immigration and Multicultural Affairs [1999] FCA 1626 at para 48, the content of the obligations imposed on the Tribunal by s 430 of the Act has been considered in a number of recent decisions of the Full Court, not all of which are consistent. His Honour noted that the relevant cases were reviewed by Moore J in Li Yue v Minister for Immigration and Multicultural Affairs [1999] FCA 1404 and by Drummond J in Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1126. I do not consider it necessary to review the decisions again. The issue on which Full Courts have taken different views is that of whether s 430(1)(d) imposes on the Tribunal an obligation to refer in its written reasons for decision to apparently probative material which suggests against a finding made by the Tribunal on a material question of fact. I agree with Hely J that the preponderance of authority supports the proposition that the Tribunal must explain why it has rejected apparently probative evidence relevant to a material issue, even though there may be other material capable of justifying the finding made by the Tribunal.
26 In this case, counsel for the respondent contended that if, contrary to her primary submission, the Tribunal was under an obligation to explain why it rejected apparently probative evidence relevant to the issue of whether the appellant and her husband were of interest to the Iraqi authorities, the obligation had no application in respect of the evidence of Mr Yaqo which was "third hand hearsay from a non-official source." It was submitted that Mr Yaqo's evidence could not be said to be "objectively material to whether the applicant was in truth a refugee."
27 It is true, as counsel for the respondent pointed out, that the Tribunal's decision is underpinned by its finding that the applicant was not a credible witness. There was a considerable body of evidence and other material which was capable of supporting the Tribunal's finding in this regard. It was not essential that the Tribunal make a determination as to Mr Yaqo's credibility before it was in a position to make a finding as to the applicant's credibility. It was the applicant who put Mr Yaqo forward as a witness of truth and a witness upon whose evidence she placed reliance. The Tribunal concluded that aspects of the applicant's evidence was "implausible" when viewed in the context of Mr Yaqo's evidence. So far as its finding as to the applicant's credibility is concerned, the Tribunal, in my view, complied with its obligations under s 430 of the Act.
28 However, the Tribunal concluded not only that the applicant was not credible, but also that it was not satisfied that either she or her husband are of any particular interest to the Iraqi authorities.
29 As is mentioned above, this conclusion, in my view, can only be understood as involving a finding that the applicant's husband is not in detention in Iraq. Whilst it was plainly open to the Tribunal to conclude that the story advanced by or on behalf of the applicant was enhanced over time with an eye to improving her chance of obtaining a protection visa, the arrest of her husband was a consistent element of her story from the beginning. No other explanation for the applicant having fled Iraq alone and while pregnant has been suggested. Against that background, the evidence of Mr Yaqo that people from the family's village in northern Iraq know of the arrest of the applicant's husband, and that the applicant's grandmother has informed him first, that the applicant's husband is still in prison and secondly, that the applicant's father has been pressured by the authorities to supply information about the applicant's whereabouts, is apparently probative. The Tribunal was of course, free to reject the evidence of Mr Yaqo by reason of its hearsay nature or accord it little, if any, weight. However, the Tribunal does not in its reasons deal with evidence of Mr Yaqo so far as it touches upon the applicant's assertion that her husband is in detention in Iraq. Perhaps more worryingly, whilst apparently rejecting the evidence of Mr Yaqo, or perhaps giving it no significant weight, for the purpose of its finding that neither the applicant nor her husband are of any particular interest to the Iraqi authorities, the Tribunal seems to have accepted it (or, at least, significant parts of it) for the purpose of drawing an adverse inference as to the applicant's credibility (see paras 19 and 20 above).
30 I have been troubled by the question of whether the Tribunal's conclusion that it was not satisfied that the applicant or her husband are of any particular interest to the Iraqi authorities is, in the total context of the Tribunal's reasons, a finding on a material question of fact. However, I have concluded that it is. "Material" questions are "questions which are central to the case raised on the material and evidence" (Thevendram at para 37). See also Hill J's consideration in Waugh v Minister for Immigration and Multicultural Affairs [1999] FCA 1464 of what constitutes a material question of fact. The applicant's claim that her husband is in detention in Iraq is central to her case. The claim is a crucial link in a chain of reasoning advanced by her to support her claim to be a person to whom Australia owes protection obligations under the Convention.
31 The Tribunal made no express finding as to whether the applicant has a fear that were she to return to Iraq she would experience persecution for a Convention reason. The finding of the Tribunal that the applicant was not a credible witness does not lead necessarily to the conclusion that she does not have a fear of persecution for a Convention reason were she to return to Iraq. Nor does the finding rule out the possibility of any such fear being well-founded. It was the Tribunal's failure to be satisfied that either she or her husband are of interest to the Iraqi authorities which enabled it to foreshorten its considerations of the applicant's claim that Australia has protection obligations to her under the Convention.
32 Had the Tribunal concluded that the applicant's husband was, or might well be, detained by the Iraqi authorities, it would have been necessary for it to give consideration to the likely background to such detention, and to its likely significance so far as the applicant is concerned should she return to Iraq. Only then would the Tribunal have been in a position to determine whether or not it was satisfied that the applicant has a well-founded fear of persecution for a Convention reason were she to return to Iraq.
33 I conclude that the applicant has made good her claim that the Tribunal did not observe procedures that the Act required it to observe in that it did not produce a statement in accordance with s 430 of the Act.